Ginivan v Southern Response Earthquake Services Limited - [2021] NZHC 1997

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-116

[2021] NZHC 1997

BETWEEN
WILLIAM FRANCIS GINIVAN,

CAMERON DAVID BAILEY as trustees of the Gift Trust

First Plaintiffs

AND

WILLIAM FRANCIS GINIVAN AND DIANE SHIRLEY CARSON

Second Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

On the papers

Counsel:

G A Cooper for Plaintiffs M A Powell for Defendant

Judgment:

4 August 2021

COSTS JUDGMENT OF ELLIS J

[1] The plaintiffs’ application for review of interlocutory “unless” orders made by Associate Judge Paulsen on 14 November 2019 came before me for hearing on 18 March 2021. An agreement was reached between the parties during the hearing and recorded by me in a minute dated 22 March 2021. But there is now a dispute about costs.

GINIVAN v SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2021] NZHC 1997 [4 August 2021]

Background

[2] The background to this very fractious matter was briefly summarised by Associate Judge Paulsen in his decision of 26 June 2020 declining the plaintiffs leave to appeal his 2019 orders. He explained:1
[1] This proceeding concerns the first plaintiffs’ property at 24 Thorrington Road, Cashmere, Christchurch which was insured with the defendant and damaged by earthquake. The plaintiffs have elected under their policy of insurance to rebuild the house on the property, but their claim is not resolved.

[2] On 19 February 2019, Whata J ordered the defendant be given access to the property to carry out an inspection at a time to be agreed by the parties. The plaintiffs did not allow the inspection. On three further occasions the court has required the plaintiffs to allow the inspection. The plaintiffs have not complied with those orders either.

[3] On the last such occasion, on 14 November 2019, relying on r 7.48(1) High Court Rules I ordered that unless the defendant was given access to the property by 14 December 2019 this proceeding was stayed pending further order of the court. …

[3] As noted earlier, in that judgment Associate Judge Paulsen declined the plaintiffs leave to appeal the unless orders he had made in November 2019. The plaintiffs then sought leave from the Court of Appeal.

[4] Both the plaintiffs’ applications for leave (to the High Court and to the Court of Appeal) were predicated on the mistaken belief that the proceeding was governed by the Senior Courts Act 2016 (the SCA).

[5] Upon receipt of the plaintiffs’ (second) application for leave the Court of Appeal identified the jurisdictional error; because the proceeding had been commenced before the SCA had come into force, the Judicature Act 1908 applied. But the Court also itself erred in then suggesting that the plaintiffs did not need leave to appeal. The Court invited the plaintiffs simply to file an appeal, which they did on 14 August 2020.

[6] After that appeal had been scheduled to be heard in March 2021 by a divisional panel (of which I was a member) the Court of Appeal identified…

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 1997
Decision Date: 4 August 2021

CaseChat Overview and Summary

The plaintiffs, William Francis Ginivan and Diane Shirley Carson, sought a review of interlocutory “unless” orders made by Associate Judge Paulsen on 14 November 2019. The defendant, Southern Response Earthquake Services Limited, opposed the review. The application for review was heard on 18 March 2021, and an agreement was reached between the parties, which was recorded by the court in a minute dated 22 March 2021. The dispute now centres on costs. The court was required to decide whether the plaintiffs or the defendant was the successful party and, if so, whether the successful party was entitled to indemnity costs. The court considered the plaintiffs’ conduct in not complying with previous court orders and their delayed challenge to the interlocutory orders. The court also considered whether the plaintiffs’ application for review was vexatious, frivolous, improper, or unnecessary. The court found that the plaintiffs were not the successful party, as they had deliberately refused to comply with court orders and had delayed challenging the interlocutory orders. The court declined to award indemnity costs but ordered an uplift on 2B costs of 20 per cent to account for the extra time and cost resulting from the jurisdictional errors and the delays they occasioned. The plaintiffs are to pay the defendant’s costs on the appeal/application for review, calculated on a 2B basis with a 20 per cent uplift, together with disbursements of $699.94.

Orders