IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CIV-2016-483-16
[2018] NZHC 2980
BETWEEN MARK ALBERT GOODIER AND NICHOLA JANE GOODIER AS
TRUSTEES OF THE GOODIER FAMILY TRUST
Plaintiffs
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 2018Appearances:
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 DefendantJudgment:
16 November 2018
JUDGMENT OF CULL J
[plaintiffs’ amendment of pleadings]
[1] The trial of this civil proceeding commenced in Whanganui on 17 September 2018, and at the end of two weeks, on 28 September, was adjourned for a further week’s hearing in Wellington from 8 to 12 October. At the request of counsel, final submissions were heard on 16 October 2018.
GOODIER v THE EARTHQUAKE COMMISSION [2018] NZHC 2980 [16 November 2018]
[2] At 5.15 pm on 16 October, after all counsel had delivered their closing submissions, Mr Shand for the plaintiffs handed up an amended statement of claim at the close of his reply submissions.
[3] Counsel for the defendants objected to the “last-minute application,” primarily on the grounds that no amended pleading may be filed after the close of pleadings date, without the leave of the Court.
[4] Mr Shand made no application for leave to file the amended statement of claim, and given the lateness of the hour, I treated the handing-up of the amended claim as an oral application for leave. Mr Shand, when asked for the grounds of his “application”, responded that it “tidies up many issues.”
[5] I directed that the defendants file memoranda, with their response to the oral application.
[6] The defendants filed memoranda in opposition to the plaintiffs’ application to file the amended statement of claim and by telephone conference on 2 November 2018, all counsel were in agreement that the application should be dealt with on the papers and no further hearing time was required.
The amendments
[7] The plaintiffs’ amended statement of claim does not show the amendments by bolding or by tracking the changes of deleted paragraphs.
[8] I therefore set out the amendments, from a comparison of the plaintiffs’ original statement of claim with the proposed first amended statement of claim as follows:
(a)Para [5(1)(b)(i)]: “the second defendant” has been changed to read “IAG”.
(b)New para [6], which reads:
6 In the policy the definition of “house” expressly includes:
(1)Driveway of permanent construction that provides direct access to the residential dwelling(s), or any other outbuilding;
(2)Patio, paths and paving of permanent construction, deck, steps, gate or fence, as long as they are on or within the residential boundaries within which the residential dwelling is situated;
(3)Walls including garden and retaining walls.
(c)Deleted paras [8] and [9] and replaced with a new para…
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- Goodier v Earthquake Commission [2018] NZHC 2980
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- [2018] NZHC 2980
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