Kilduff v Tower Insurance Limited - [2018] NZHC 2021

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000344

[2018] NZHC 2021

BETWEEN ELIZABETH MARY KILDUFF AND VERITAS (2012) LIMITED
Plaintiffs

AND

TOWER INSURANCE LIMITED

Defendant

Hearing: (Determined on the papers)

Counsel:

C R Johnstone, H Bowering-Scott and E Walton for Plaintiffs M C Smith and S S McMullan for Defendant

Judgment:

9 August 2018

JUDGMENT OF GENDALL J

As to Costs

Introduction

[1] The parties have made applications for costs based upon their respective claims of success in this litigation.

[2] The proceeding was the subject of a five day hearing in early November 2017. This was followed by further written submission in November and December 2017. After the initial judgment was released on 17 April 2018 (the substantive judgment), further memoranda were filed to deal first with alleged errors in that judgment and secondly, to address a number of issues which had been reserved. A further judgment was released on 30 May 2018 on those matters (the subsequent judgment).

KILDUFF v TOWER INSURANCE LIMITED [2018] NZHC 2021 [9 August 2018]

Background

[3] The factual background of this proceeding is set out in full in the substantive judgment. It is useful therefore only to briefly highlight a few relevant facts for this determination, which I now do.

[4] The defendant (Tower) insured the plaintiffs’ property, which was substantially damaged in the 2010 and 2011 Christchurch earthquake sequence. The plaintiffs initiated these proceedings in May 2016 because they considered that Tower was not adequately assessing the damage to the property.

[5] In their initial statement of claim, the plaintiffs pleaded that the earthquake damage to their house was “objectively beyond feasible and economic repair” and sought a money judgment by way of declaration for the rebuild cost. That rebuild cost was later quantified at $1,952,891 (a figure which included EQC payments that had been received). Tower considered, however, that the house was repairable. The dispute about whether the house was repairable was the principal focus of disagreement between the parties until about mid-2017 when the plaintiffs conceded that the house was repairable.

[6] The dispute after that point, and the issues that went to trial, related to the scope of the repair required, the appropriate costing of the repair, and a claim by the plaintiffs for general damages. During this stage of proceedings, I am now told that the parties exchanged Calderbank offer (a confidential without prejudice written settlement offer save as to costs) correspondence.

[7] A little under three months before trial, on 15 August 2017, following the plaintiffs’ concession that the house was repairable, Tower made a Calderbank settlement offer of $650,000. The plaintiffs rejected this on 18 August 2017 with no counter offer made. Only about five working days before trial, on 27 October 2017, following completion of the quantity surveyors’ conferral, Tower made a new Calderbank offer of $734,000. The plaintiffs rejected this offer on 30 October 2017 but said they would accept a settlement offer at…

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 Kilduff v Tower Insurance Limited

Details

AGLC: Kilduff v Tower Insurance Limited [2018] NZHC 2021
Case: [2018] NZHC 2021
Decision Date: 9 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Elizabeth Mary Kilduff and Veritas (2012) Limited, sued Tower Insurance Limited over a claim regarding the damage to their property caused by the 2010 and 2011 Christchurch earthquake sequence. The plaintiffs alleged that Tower was not adequately assessing the damage to their property and sought a money judgment for the rebuild cost. Tower, however, considered that the house was repairable. The dispute about whether the house was repairable was the principal focus of disagreement between the parties until mid-2017 when the plaintiffs conceded that the house was repairable. The parties then exchanged Calderbank offers but failed to settle, leading to a trial. The plaintiffs were successful in their claim, and both parties applied for costs.

The primary legal issue before the court was to determine which party was successful in the litigation, and whether the Calderbank offers had any effect on the costs. The court also had to decide on the quantum of costs and disbursements to be awarded to the successful party. The court had to consider whether the Calderbank offers had any impact on the costs, and whether the plaintiffs' refusal to accept the offers should affect the costs award. The court also had to determine whether the costs and disbursements claimed by the plaintiffs were reasonable and appropriate.

The court held that the plaintiffs were substantially successful in the proceeding, and thus entitled to costs. The court found that the plaintiffs had achieved a judgment that was significantly greater than the settlement options presented by Tower before proceedings were issued in 2016. Although the plaintiffs did not achieve all that they claimed, the court found that their claim for general damages was fairly pursued and did not unreasonably extend the length of the trial. The court also held that the Calderbank offers did not have any effect on the costs as the offers were less than the benefit received by the plaintiffs from the judgment. Finally, the court determined that the costs and disbursements claimed by the plaintiffs were reasonable and appropriate, subject to some minor adjustments.

The court ordered that Tower was to pay to the plaintiffs costs totalling $81,249 and disbursements totalling $122,515.20. The court found that the plaintiffs were entitled to all their reasonable costs and disbursements on this proceeding, and that the total costs and disbursements figure to be awarded to the plaintiffs was $203,764.20.

Orders