Ideal Investments Ltd v Earthquake Commission

[2022] NZHC 1079

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-009-1087

[2022] NZHC 1079

BETWEEN

IDEAL INVESTMENTS LIMITED

Plaintiff

AND

THE EARTHQUAKE COMMISSION

Defendant

Hearing:

(Determined on the papers)

Counsel:

G Shand for Plaintiff

C Curran and N Walker for Defendant

Judgment:

17 May 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Judgment on application for leave to appeal)

IDEAL INVESTMENTS LIMITED v THE EARTHQUAKE COMMISSION [2022] NZHC 1079 [17 May 2022]

[1]                 On 9 March 2022, I dismissed Ideal Investments Limited’s (Ideal) application for leave to bring a representative action.1

[2]                 While  the  Earthquake  Commission  (EQC)  did  not  oppose  there  being   a representative action, it had real concerns about the framing of the common issue. In short, I accepted the reasons advanced by EQC as to why Ideal had framed the common issue was flawed.

[3]On 17 March 2022, Ideal sought leave to appeal the 9 March 2022 decision.

[4]                 EQC filed a memorandum on 14 April 2022 advising it did not oppose the application for leave and would abide the decision of the Court.

[5]                 Given the role of leave is to filter out unmeritorious appeals, I called for     Mr Shand, counsel for Ideal, to file submissions in support. Mr Shand has now filed brief submissions. He asserts the merit of Ideal’s application for leave is exemplified by EQC not opposing the application. He also submits that the draft appeal sets out numerous and substantial errors made in the decision.

[6]                 I accept Mr Shand’s submission that the proposed appeal is not brought for tactical grounds.

[7]                 However, I do not read the draft notice of appeal as setting out a reasonably arguable ground of appeal in relation to the key basis upon which the application to sue as representative plaintiff was dismissed. Paragraph 6 of the draft notice of appeal simply states: “The Court was wrong to determine that breach was dependent on the circumstances of each claim.”  The  draft  notice  of  appeal  at  paragraph  7  says the decision misunderstood Ideal’s claim:

… which is/was that EQC breached s 29(4) [of the Earthquake Commission Act 1993] based on the timing of the determination/payment. The trial of Ideal’s claim will be about whether EQC’s timing(s) were a breach.

1      Ideal Investments Ltd v The Earthquake Commission [2022] NZHC 400.

[8]                 I do not see how paragraphs 6 and 7 of the draft notice of appeal explain why the core reason for the dismissal of the application to bring a representative action was arguably wrong.

[9]I decline Ideal’s application for leave to appeal.

Associate Judge Lester

Solicitors:

Grant Shand, Auckland (for Plaintiff)

Russell McVeagh, Wellington (for Defendant)