Kilduff v Tower Insurance Limited - [2018] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000344

[2018] NZHC 1243

BETWEEN ELIZABETH MARY KILDUFF AND VERITAS (2012) LIMITED
Plaintiffs

AND

TOWER INSURANCE LIMITED

Defendant

Hearing:
Determined on the papers Memoranda:

Joint – 4 May 2018
Plaintiff – 4 May 2018 and 16 May 2018
Defendant – 15 May 2018

Appearances:

C R Johnstone and H Bowering-Scott for Plaintiffs M C Smith and S S McMullan for Defendants

Judgment:

30 May 2018

JUDGMENT OF GENDALL J

KILDUFF v TOWER INSURANCE LTD [2018] NZHC 1243 [30 May 2018]

Introduction

[1] On 17 April 2018 I issued my substantive judgment in this proceeding (the judgment).

[2] On 4 May 2018, the parties filed a joint memorandum alleging errors in the calculation of Tower’s maximum liability in the judgment which they say can be corrected under the “slip rule”, r 11.10 of the High Court Rules. The parties could not agree, however, over the implications of those errors and the mathematically correct outcomes that should follow. They have since filed memoranda on those issues. Those memoranda have also addressed other issues of interest calculations and consultants’ fees. These were reserved at [135] in the judgment, and directed at [136] to be the subject of further written submissions.

Errors in judgment calculation

[3] The plaintiffs submit that the method of calculating the repair cost in the judgment is accurate (that is, basing it off the joint quantity surveyors’ report) but that two of the stated amounts were in error. These errors affected the final sum.

[4] The plaintiffs are correct that the “base construction cost” referred to at [100] should have been $493,077 rather than $489,077.26 and that the amount for P & G and margin allowances requires a revised calculation. In addition, the stated figure for professional fees also referred to at [100] should have been $81,100 rather than
$61,750. I mistakenly took the total for the latter from Mr Eggleton’s estimate, rather than the sum in accordance with the joint findings made. I apologise for these errors. This means, too, that Tower’s total construction cost (including GST) liability for the purposes of [101] should have been recorded as $871,042.14 rather than $840,330.88.

[5] In response, Tower suggests that the method of calculation in the judgment was in error. Mr Smith for Tower submits that Mr Eggleton’s costing should have been taken as the starting point. From that point, the additional allowances awarded in the judgment, he says, should have been added. If that approach is taken, the total gross construction cost for repairs, Tower says, comes to $832,727 (including GST).

[6] The parties’ different methods result in a total difference of $38,315.14. This difference reflects the fact that there were some differences between the costings used in the joint quantity surveyors’ report and the parties’ individual quantity surveyor costings.

[7] Tower criticises the Court’s use of the joint report as its starting point. Counsel claims that it became outdated given the adjustments…

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 1243
Case: [2018] NZHC 1243
Decision Date: 30 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Elizabeth Mary Kilduff and Veritas (2012) Limited brought a claim against Tower Insurance Limited for errors in the calculation of the repair costs and interest in the judgment, as well as for reimbursement of the costs of hiring four consultants. The main legal issues were whether the court should correct the errors in the calculation of the repair costs and interest under the slip rule, and whether the plaintiffs should be reimbursed for the consultants' fees. The court found that the errors in the judgment calculation could be corrected under the slip rule as they were clerical mistakes or errors arising from an accidental slip or omission. The court also found that the plaintiffs were entitled to interest at 5% per annum from 14 December 2017 to the date of payment by Tower to the plaintiffs of the judgment amount. However, the court found that the plaintiffs had no clear legal basis to criticise Tower's approach that it would only meet the costs of the plaintiffs' consultants where obtaining their reports was pre-approved by Tower, or where the consultant's advice influenced Tower's assessment. Therefore, the court ordered Tower to reimburse the plaintiffs $1,939 for Mr Sturman's fees but not for the balance of the fees claimed.

Orders