Goodier v Earthquake Commission - [2018] NZHC 2980

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 2018

Appearances:

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:

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…

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 [2018] NZHC 2980
Case: [2018] NZHC 2980
Decision Date: 16 November 2018

CaseChat Overview and Summary

In the case of Goodier v Earthquake Commission, the plaintiffs sought leave to amend their pleadings at the close of the reply submissions. The defendants objected to the late amendment, arguing that it was prejudicial, caused delay, and was not in the interests of justice. The court had to determine whether the plaintiffs were entitled to amend their pleadings after the close of pleadings date, and if so, which specific amendments were permissible. The court considered the relevant legal principles, the parties' positions, and the categories of proposed amendments. The court found that the amendments in category 1 and category 2 were permissible as they updated the information before the court and contained the real controversy between the parties. However, the amendments in category 3 were not allowed as the underlying cause of action had been abandoned, and interest and costs could not be awarded without a judgment upholding liability. The court granted leave for the amendments in category 1 and category 2, subject to the defendants having an adequate opportunity to address any new items of damage and the revised remediation costs. The court reserved costs.

Orders