Ginivan v Southern Response Earthquake Services Ltd - [2020] NZHC 1469

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000116

[2020] NZHC 1469

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 LIMITED

Defendant

Hearing: 19 June 2020

Appearances:

G A Cooper for Plaintiffs M A Powell for Defendant

Judgment:

26 June 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 June 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Ginivan v Southern Response Earthquake Services Ltd [2020] NZHC 1469 [26 June 2020]

The application

[1] This proceeding concerns the first plaintiffs’ property at 24 Thorrington Road, Cashmere, Christchurch which was insured with the defendant and damaged by earthquake.1 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. The plaintiffs seek leave to appeal from that order pursuant to s 56(3) of the Senior Courts Act 2016.

Background

[4] The statement of claim was filed on 21 February 2017 and the plaintiffs seek declaratory relief concerning the scope and payment of the costs of the rebuild. The defendant filed its statement of defence on 18 April 2017. Both the statement of defence and the defendant’s memorandum of 10 May 2017 for first case management review note the plaintiffs’ refusal to allow the defendant access to the property to confirm its assessment of the cost to rebuild the house.

[5] On 16 May 2017, Whata J issued a minute for first case management review. He made directions which relevantly required the plaintiffs to provide a construction contract containing the detailed designs for works required to rebuild the house by 31 August 2017.

1 Throughout this judgment references to the plaintiffs mean the first plaintiffs.

[6] The plaintiffs did not comply with that direction and on 17 October 2017 Courtney J made an amended timetable. The plaintiffs were to provide the construction contract/designs by 1 April 2018. These have not been provided due to unresolved disputes between the parties.

[7] From an early stage there have been disputes about professional fees. In a minute of 20 March 2018, Associate Judge Osborne noted these were preventing progress with the proceeding. He made a timetable…

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: [2020] NZHC 1469
Decision Date: 26 June 2020

CaseChat Overview and Summary

This case concerns the plaintiffs' property at 24 Thorrington Road, Cashmere, Christchurch, which was insured with the defendant, Southern Response Earthquake Services Limited, and damaged by earthquake. The plaintiffs seek declaratory relief concerning the scope and payment of the costs of the rebuild. The defendant ordered an inspection of the property, which the plaintiffs refused to allow. The plaintiffs now seek leave to appeal an order made by Associate Judge Paulsen on 14 November 2019, which required the plaintiffs to allow the defendant to inspect the property by 14 December 2019 or the proceeding would be stayed. The court was required to decide whether the plaintiffs had established an arguable error of fact or law, whether the appeal was likely to be overtaken by the substantive hearing, and whether the appeal was of sufficient importance to outweigh the cost and delay of the appeal. The court found the plaintiffs' objections to the inspection order were not well-founded and that the plaintiffs' refusal to comply with the order was deliberate. The court held that the proposed appeal did not raise any issues of general or public importance, and that the plaintiffs' stance was not merited. The court found that the interests of justice required enforcement of the court's directions, and that the plaintiffs' application for leave to appeal was dismissed. The court directed that counsel should try to reach agreement on costs.

Orders