Ginivan v Southern Response Earthquake Services - [2021] NZHC 2354

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000116

[2021] NZHC 2354

BETWEEN
WILLIAM FRANCIS GINIVAN and

BRETT WILLIAM REID as trustees of the GIFT TRUST

First Plaintiffs

AND

WILLIAM FRANCIS GINIVAN and DIANE SHIRLEY CARSON

Second Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES

Defendant

Hearing: On the papers

Counsel:

G A Cooper for Plaintiffs

M A Powell and R A Morris for Defendant

Judgment:

9 September 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 9 September 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GINIVAN v SOUTHERN RESPONSE EARTHQUAKE SERVICES (Costs Judgment) [2021] NZHC 2354
[9 September 2021]

[1] This proceeding is an earthquake claim in respect of the first plaintiffs’ property at Cashmere. On four occasions the plaintiffs refused to comply with directions of the Court to allow the defendant access to carry out inspections of the property. As a consequence, on 14 November 2019, I made an unless order that the defendant was to be given access to the property by 14 December 2019 failing which the proceeding was stayed pending further order of the Court.1

[2] The plaintiffs applied for leave to appeal the order made on 14 November 2019, ostensibly pursuant to s 56(3) of the Senior Courts Act 2016. That application was opposed. In a reserved judgment of 26 June 2020, I dismissed the application and directed counsel to confer on costs.2 Agreement could not be reached and counsel filed written submissions as to the parties’ respective positions.

[3] Unsatisfied with my decision of 26 June 2020, the plaintiffs sought leave from the Court of Appeal to appeal from the order of 14 November 2019. The issue of costs following my judgment of 26 June 2020 was put on hold.

[4] What then followed is set out in a judgment of Ellis J of 4 August 2021.3 In summary, it was identified in the Court of Appeal that the plaintiffs’ applications for leave to appeal (both in this Court and the Court of Appeal) were predicated on a mistaken belief the proceeding was covered by the Senior Courts Act. There was, in fact, no right of appeal from the decision of 14 November 2019. The correct course was for the plaintiffs to seek a review of that decision. As an indulgence it was agreed that Ellis J, sitting as a Judge of the High Court, would hear the appeal as if it had been filed in the High Court as an application for review.

[5] When the matter came before Ellis J, the application for review was resolved by agreement save in relation to costs.4 In her judgment of 4 August 2021, Ellis J dealt with costs on the review and awarded costs to the defendant on a 2B basis with a 20 per cent uplift.5

1 Ginivan v Southern Response Earthquake Services Ltd HC Christchurch CIV-2017-409-116, 14 November 2019 (Minute).
2

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 2354
Decision Date: 9 September 2021

CaseChat Overview and Summary

The case of Ginivan v Southern Response Earthquake Services, heard in the High Court of New Zealand, Christchurch Registry, concerns an earthquake claim regarding the plaintiffs' property in Cashmere. The plaintiffs, William Francis Ginivan and Diane Shirley Carson, and the trustees of the GIFT Trust, had previously refused to comply with court directions to allow the defendant, Southern Response Earthquake Services, access to the property. The matter was brought before the court for a determination of costs following the plaintiffs' unsuccessful application for leave to appeal the unless order of 14 November 2019, which mandated the defendant be given access to the property by 14 December 2019.

The legal issues before the court involved the appropriate costs to be awarded to the defendant for the plaintiffs' unsuccessful application for leave to appeal. The defendant argued for indemnity costs, claiming the plaintiffs acted vexatiously, frivolously, improperly or unnecessarily in bringing the application. The plaintiffs, on the other hand, argued that costs should be reserved pending the outcome of the substantive proceeding, or in the alternative, that 2B costs were appropriate, and that if indemnity costs were to be awarded, the claimed amount was excessive.

The court determined that the defendant was entitled to an uplift on scale costs due to the plaintiffs' unsuccessful application for leave to appeal. The court found that the application had advanced nine alleged errors of fact or law, not all of which were pursued at the hearing, and that the arguments advanced in support of the application lacked any substantive merit. Additionally, the application was based on a mistaken understanding of the plaintiffs' entitlement to appeal, which should have been properly researched prior to filing the application. As a result, the court awarded the defendant costs on the application for leave to appeal calculated on a 2B basis with a 20 per cent uplift together with reasonable disbursements.

The court also reserved leave to the parties to refer back to the court if it was necessary to fix the amount of costs payable by the plaintiffs awarded in the minute of 14 November 2019. This decision ensures that the court retains the ability to address any outstanding issues relating to the costs awarded in the earlier proceeding, should the need arise.

Orders