Grace v Orion New Zealand Limited

[2020] NZHC 1007

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000454

[2020] NZHC 1007

BETWEEN

CECILE GRACE AND OTHERS

Plaintiffs

AND

ORION NEW ZEALAND LIMITED

First Defendant

LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP

Second Defendant

Hearing:

14 May 2020 (by way of telephone conference)

Counsel:

C M Stevens for Plaintiffs

T C Weston QC and R Scott for First Defendant
W J Hamilton and L A Merrick for Second Defendant

Judgment:

15 May 2020

JUDGMENT OF GENDALL J

Reasons for Decision

This judgment was delivered by me on 15 May 2020 at 12 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 1007 [15 May 2020]

[1]        On 29 April 2020, I granted leave to the plaintiffs to file a further amended statement of claim in this proceeding (being the fifth amended statement of claim) to amend quantum claim figures and to fix typographical errors which had been matters raised just prior to that time by counsel for the plaintiffs.

[2]        On 6 May 2020 the plaintiffs filed in this Court a fifth amended statement of claim.

[3]        As I understand it, shortly after that date either on 7 or 8 May 2020 the plaintiffs served the amended statement of claim on the first defendant and the second defendant.

[4]        Subsequently, on 13 May 2020, counsel for the first defendant and the second defendant filed in this Court a joint memorandum seeking urgent directions relating to the fifth amended statement of claim.

[5]        Counsel for the plaintiffs also on 13 May 2020, in response filed a memorandum purporting to address the matters which had been raised in their memorandum by counsel for the defendants.

[6]        An urgent telephone conference hearing relating to these matters was convened yesterday, 14 May 2020, at which I gave a decision granting leave to the plaintiffs (given that the close of pleadings date in this proceeding had passed) to the filing of this fifth amended statement of claim. This was on the basis that a small suggested amendment to one provision was made which I outline below.

[7]        In doing so, I indicated that my reasons for this decision would follow. I now set out those reasons.

[8]        In their joint memorandum of 13 May 2020 counsel for the first defendant and second defendant contend that the fifth amended statement of claim does not comply with earlier orders made by this Court, and in particular, and without limitation they say:

(a)it was not filed and served forthwith as my direction of 29 April 2020 required and it was not received in any event prior to 7 May 2020 as the minute recorded;

(b)the amended pleading made extensive amendments well beyond what could be categorised as “minor typographical errors”; and

(c)the amended pleading added a further category of loss going beyond the evidence of the plaintiffs’ loss adjuster.

[9]        With regard to the first complaint advanced by counsel for the defendants concerning timing of the filing and service of this pleading, as I see it, this is of little moment bearing in mind issues facing the Court and the parties during this lockdown time. Although the fifth amended statement of claim may not have been served upon one or both of the defendants until 8 May 2020, being one day late, I put this to one side here.

[10]      So far as the other changes to the pleading the subject of complaint from the defendants are concerned, after a lengthy discussion with all counsel the first matter relating to paragraph 76.1 appeared to fall away somewhat on the basis that a suggested addition to this paragraph was made.

[11]      That said, the new paragraph 76.1 of the fifth amended statement of claim is to have the words in parenthesis, which I note below, added. That paragraph is now to read:

76.1A two-phase overcurrent occurred as a result of two of the 11 Kv lines clashing through either being blown together by wind or because of a branch (either attached or detached) causing two lines to come together.

[12]      And, as to the second matter which was the subject of complaint from the defendants, this at least partially did relate to what was a quantum issue. That quantum issue arose from the evidence of the plaintiffs’ loss adjuster, Mr Bird, as I understand it. Mr Bird’s evidence from his brief, it is said, reflected the existing pleading whereby loss was claimed separately by reference to each of the two fires. In particular, the

loss (amounting to some $2.4 million) claimed in relation to the plaintiffs Mr and Mrs Flanagan whose property was last affected by the fires, was originally, as I understand it, claimed solely against Orion. The amended pleading now pleads such loss in relation to each of the defendants. This is noted in paragraph 90.3 of the fifth amended statement of claim. All this appears to relate to the issue of the merger of the Early Valley Road fire with the Summit Road fire which it seems has been the subject of considerable discussion and evidence to date. With additional time being allowed for the second defendant affected by this amendment to provide supplementary evidence (which I am allowing in a minute issued today) this merger pleading, as I see it, will not cause significant prejudice to any party nor result in undue delay and it is in the interests of justice here for this to be allowed.

[13]      Determination of the real controversy between the parties here is the fundamental yardstick I must consider for a decision on amendment to the pleadings but also taking into account whether significant prejudice may be caused to other parties as a result. Overall, I am satisfied that to ensure this real controversy between the parties is to go to trial to enable a just determination of this dispute to be achieved, the amendments sought in this fifth amended statement of claim are appropriately allowed. The fifth amended statement of claim, in my view, relates essentially to the substance of what has been earlier pleaded, and the parties seem to accept there is no risk of significant prejudice resulting given their ability to provide supplementary evidence. The broader interests of justice in this case are best served, in my view, by leave being granted to the filing of this amended pleading. These are the reasons why the order granting leave was made yesterday, 14 May 2020.

[14]      In the meantime, if any issue as to costs might arise as a result of this, those costs are reserved for determination when this matter is finally resolved.

...................................................

Gendall J

Solicitors:

DLA Piper New Zealand, Auckland Kennedys, Auckland

Chapman Tripp, Christchurch

Copy to

Craig Stevens Barrister, Wellington

Thomas Weston QC, Barrister, Tai Tapu