Goodier v Earthquake Commission - [2020] NZHC 64

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2016-483-000016

[2020] NZHC 64

BETWEEN
MARK ALBERT GOODIER AND NICHOLA JANE GOODIER

AS TRUSTEES OF THE GOODIER FAMILY TRUST
Plaintiff

AND

THE EARTHQUAKE COMMISSION

First Defendant

AND

IAG NEW ZEALAND LIMITED

Second Defendant

Hearing:
17 – 28 September 2018

8 – 10 October 2018
12 October 2018
16 October 2018
7 February 2019, 27 February 2019 and 14 March 2019 (further submissions received)

Counsel:

G D R Shand and N T P Lala for the Plaintiffs

B A Scott and J Y Moran for the First Defendant
R W Raymond QC and S K Swinerd for the Second Defendant

Judgment:

3 February 2020

JUDGMENT OF CULL J

[1] Following my judgment of 2 September 2019,1 the Earthquake Commission (EQC) and IAG New Zealand Ltd (IAG) have filed memoranda seeking costs, and an interlocutory application seeking non-party costs against the litigation funder Claims

1 Goodier v The Earthquake Commission [2019] NZHC 2176.

GOODIER v THE EARTHQUAKE COMMISSION [2020] NZHC 64 [3 February 2020]

Resolution Service (2015) Ltd (CRS). This judgment deals only with that first issue: whether and what type of costs should be awarded.2

[2] EQC and IAG accept that category 2B is the appropriate scale for the most part and seek an uplift on those scale costs of 25 per cent as well as reasonable disbursements.

[3] Of relevance to this stage of the proceeding, the following costs orders are sought:

(a)EQC seeks that the plaintiffs pay EQC’s costs of this proceeding in the amount of $140,107.92 and EQC’s reasonable disbursements of
$124,343.41, being a total of $264,451.33.

(b)IAG seeks that the plaintiffs pay IAG’s costs of $111,867.80 and reasonable disbursements of $30,910.96, being a total of $142,778.76.

[4] The plaintiffs to this proceeding, Mr and Mrs Goodier, oppose the cost orders sought on a number of grounds.

Background

[5] In June 2015 there was a landslip at the Goodiers’ property which caused damage. The Goodiers lodged claims for the damage with EQC under the Earthquake Commission Act 1993 (the Act) and IAG under their insurance policy.

[6] EQC accepted liability under the Act and paid the Goodiers $136,790.21 (less excess) in respect of the building, retaining walls and land. IAG made a further payment of $36,776.05 to the Goodiers for the damage to the paved driveway. Both EQC and IAG maintained this was the limit of their liability under the Act and the insurance policy respectively.

2 Whether costs should be awarded against CRS is the subject of a hearing set down for this week, for which I will issue a further judgment after the parties have provided oral argument.

[7] The Goodiers disagreed with EQC and IAG’s positions and issued proceedings in May 2016. At trial, the Goodiers sought $76,709.79 from EQC under s 18 of the Act, and a full sum insured from IAG of $369,972.95, along with $2500 for landscaping costs, $20,000 for retaining wall costs, $1000…

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.

Continue reading Goodier v Earthquake Commission

Details

AGLC: Goodier v Earthquake Commission [2020] NZHC 64
Case: [2020] NZHC 64
Decision Date: 3 February 2020

CaseChat Overview and Summary

This case is an application for costs in the High Court of New Zealand, Wanganui Registry, between Mark Albert Goodier and Nichola Jane Goodier as Trustees of the Goodier Family Trust (the plaintiffs) and the Earthquake Commission (EQC) and IAG New Zealand Ltd (IAG) (the defendants). The plaintiffs lodged a claim for damages caused by a landslip at their property in June 2015, which EQC and IAG had previously settled. The plaintiffs sought additional damages from EQC and IAG, which were rejected by the court in a previous judgment. The defendants are now seeking costs for the proceeding. The plaintiffs oppose the cost orders on various grounds.

The court considered the appropriate scale for the costs, whether an uplift was appropriate, and the reasonable disbursements. The court found that the proceeding was appropriately categorised as category 2B, with some exceptions. The court accepted some of the exceptions proposed by the defendants and rejected others. The court found that the plaintiffs' conduct contributed unnecessarily to the time and expense of the proceeding and allowed for a five per cent uplift in the costs.

The court also considered the reasonable disbursements claimed by the defendants. The court accepted some of the disbursements claimed by the defendants and rejected others. The court directed the parties to update their costs schedules accordingly and provide the final figures to the Registry.

The court's final orders were that the plaintiffs pay EQC's costs of $140,107.92 and EQC's reasonable disbursements of $124,343.41, being a total of $264,451.33, with a five per cent uplift. The plaintiffs were also ordered to pay IAG's costs of $111,867.80 and reasonable disbursements of $30,910.96, being a total of $142,778.76, with a five per cent uplift. IAG was directed to update its Schedule 2 to reflect that only 25 per cent can be recovered from Kevin O'Connor & Associates.

Orders