Jarden v Earthquake Commission
[2014] NZHC 2406
•14 October 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2013-409-001332 [2014] NZHC 2406
BETWEEN DAVID JOHN JARDEN and JOANNE
JARDEN Plaintiffs
AND
THE EARTHQUAKE COMMISSION First Defendant
LUMLEY GENERAL INSURANCE (NZ) LIMITED
Second Defendant
Hearing: (On Papers) Judgment:
14 October 2014
JUDGMENT OF WHATA J
[1] The plaintiffs make various claims against the defendants under a policy of insurance in respect of accidental loss to their house caused by the Christchurch earthquakes. The second defendant, Lumley General Insurance (NZ) Limited (Lumley) seeks further and better particulars in relation to:
(a) The identification of the sudden and accidental loss to the house caused by 4 September 2010, 22 February 2011 and 23 December
2011 earthquakes.
(b) Particulars as to the repair cost. (c) Particulars as to the rebuild cost.
JARDEN v THE EARTHQUAKE COMMISSION [2014] NZHC 2406 [14 October 2014]
Jurisdiction
[2] An application for particulars is made under full r 5.21 of the High Court Rules. This rule provides that a party may require another party to give “any further particular that may be necessary to give fair notice” of the cause of action or particulars required by the High Court Rules. As essayed by Kos J in Platt v Porirua City Council,1 the relevant principles are as follows:
[19] It follows that the extent of particularisation of pleading has changed somewhat over the last 25 years. But its fundamental function is unaltered. Particulars of pleading are important to:
(a) inform defendants as to the case they have to meet;
(b) limit the scope of matters the plaintiff may put in issue at trial (or in pre-trial settlement discussion);
(c) enable the defendants to know what witnesses it will need to retain and enable them to start preparing evidence ahead of the formal exchange of evidence; and
(d) provide an opportunity for a defendant to seek summary determination on the basis that the claim as pleaded is untenable.
Identification of sudden and accidental loss
[3] The first amended statement of claim states at paragraph [8]:
8 By earthquakes on 4 September 2010, 22 February 2011 and 23
December 2011 the plaintiffs suffered sudden and accidental loss to the house including inter alia:
(1) Cracking to concrete slab foundation;
(2) Differential settlement with a floor level differential of
(a) House – 26mm; (b) Garage – 19mm;
(c) Lounge only – 16mm;
(3) 17% of the house floor area sloping steeper than 1 in 200;
(4) Noticeable areas of the garage floor are sloping steeper than
1 in 200;
(5) Internal and external walls out of vertical;
1 Platt v Porirua City Council [2012] NZHC 2445.
(6) Racking of house framing; (7) Sagging of ceiling beam; (8) Leaking roof;
(9) Doors and windows jamming and out of square; (10) Brick cladding separated from wall studs;
(11) Cracking to internal wall linings;
(12) Detachment of wall linings from supporting studs.
[4] The second defendant seeks the following particulars in relation to this paragraph:
In relation to paragraph 8 of the claim, identify (including relevant measurements) all of the sudden and accidental loss to the house that the plaintiffs say was caused by the:
1. 4 September 2010 earthquake;
2. 22 February 2011 earthquake; and
3. 23 December 2011 earthquake.
[5] It will be evident on the face of paragraph 8 that no attempt has been made by the plaintiffs to differentiate between the earthquakes as to the nature and type of loss caused by each of those earthquakes. The plaintiffs, however, allege at paragraph 15 that the September 2010 earthquake was significant and caused about
99% of all the damage to the property. At paragraph 16 the plaintiffs apportion the damage to the house as being caused by September 2010 quake at 99%, and the February 2011 quake at 1%. Further particularisation is thus unnecessary for the purposes of the defendant being able to refute the claim made by the plaintiffs. Indeed it is difficult to see what assistance would be gained by the plaintiffs itemising 99% of the damage as against 1% of the damage. This part of the application is declined.
Remediation and repair strategy
[6] Paragraph 19 of the amended statement of claim alleges:
19To remediate the house on its current site to a condition as similar as possible to when it was new would cost about:
(1) Repair - $686,284 (inclusive of fees) as set out in the
attached schedule;
(2) Rebuild - $731,215 (inclusive of fees) as set out in the
attached schedule.
[7] The attached schedules then set out in significant detail the repair works that are required under various headings, including foundation, elevation, roof, garage, walkways, woolshed, laundry/re-entry, kitchen, family, dining, lounge, hall, bedrooms, study, bath, entry and services, among others.
[8] There is then a rebuild cost estimate essentially based on a square metre rate for various parts of the building and for demolition.
[9] The second defendant now seeks the following particulars:
(1) ….
(a) In relation to the repair, particularise why the plaintiff alleges:
(i) A full rebuild of the dwelling foundation is required; (ii) Building of an enhanced foundation is required;
(iii) Full replacement of the roof, exterior brick, and interior ceilings and walls to all rooms is required;
(iv) Removal and replacement of the patio is required;
(v) In relation to the garage why a full rebuild of the foundation is required;
(vi) In relation to professional fees why the following fees are required to be incurred;
A. Structural engineering advice; B. Geotechnical advice;
C. Drafting work;
(vii) In relation to preliminary and general why the following costs are required to be incurred:
A. QS scoping and documentation;
B. Supervision (as distinct from project management);
C. Office administration costs;
D. A site office to carry out the repair work;
E. A building consent to carry out the repair work;
F. A building research levy to carry out the repair work;
(2) In relation to the rebuild costing in the schedule, provide a full breakdown of:
(a) The nature and extent of the proposed foundation for the dwelling and garage;
(b) What rebuild “dwelling above ground” includes:
(c) What rebuilding the garage includes;
(d) What percentage of the rebuild costs have been applied for: (i) Professional fees;
(ii) Preliminary and general fees; (iii) Margin; and
(iv) Contingency.
[10] The nature of the particulars request in relation to the repair work is revealing. The second defendant seeks particulars as to “why” the plaintiffs allege various repair matters. The resolution of why a plaintiff alleges a particular matter is an invitation to express an opinion on the allegation which can only be sensibly answered by expert evidence. While that statement of opinion may be helpful to the second defendant in terms of clarification of matters in dispute, the primary allegation, namely the claim to repair, is clear and capable of response without further particulars.
[11] The claim in relation to rebuild costs is, however, in a different category. The breakdown sought will provide clarity as to the claim made and the basis for it which will in turn assist the defendant in properly pleading, including acceptance of any matters alleged. It is the type of clarity one might expect in a claim of this nature so that the Court is properly focussed on the points in dispute.
[12] Given the foregoing, I decline the application in relation to paragraphs 8 and
19(1) of the first amended statement of claim. However, I grant the application for a breakdown of the matters identified by the second defendant for the purposes of the rebuilding costs. I do not, however, want to affect the current timetabling to a hearing. I am going to convene a conference with that objective in mind.
[13] Costs on this application are reserved.
Solicitors:
Grant Shand, Christchurch
Chapman Tripp, Wellington
McElroys, Auckland
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