Kitchen v AA Insurance Limited - [2019] NZHC 1902

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000233

[2019] NZHC 1902

BETWEEN LEWIS QUINN KITCHEN AND SHARYN JANE KITCHEN
Plaintiffs

AND

AA INSURANCE LIMITED

Defendant

Hearing: 26 July 2019 (by way of telephone conference)

Appearances:

T J Brown for Plaintiffs C M Brick for Defendant

Judgment:

6 August 2019

JUDGMENT OF GENDALL J

This judgment was delivered by me on 6 August 2019 at 4:15 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: 6 August 2019

KITCHEN v AA INSURANCE LIMITED [2019] NZHC 1902 [6 August 2019]

Introduction

[1] The plaintiffs have applied to transfer these proceedings to the Canterbury Earthquakes Insurance Tribunal (the Tribunal). The defendant, AA Insurance Limited (AA) opposes the application on the general grounds that it is not in the interests of justice to transfer the proceedings.

[2] The present application is brought pursuant to s 16 of the Canterbury Earthquakes Insurance Tribunal Act 2019 (the Act).

[3]Section 16 of the Act relevantly provides:

16 Claim brought by transfer of proceedings from court

(1)If a person who is a policyholder or an insured person (or both) is a plaintiff in court proceedings relating to an insurance claim in dispute, a Judge may, on the application of that person or on the Judge’s own motion, order that the proceedings be transferred to the tribunal.

(2)An order to transfer proceedings may be made under subsection (1) only if—

(a)the proceedings meet the eligibility criteria for a claim under section 9 (however, the proceedings may also include additional parties to those referred to in section 8, but may not include a class action—see clause 6(2) of Schedule 2); and

(b)the other party or parties to the proceedings have been given a reasonable opportunity to comment; and

(c)the Judge making the order believes that the transfer is in the interests of justice.

[4] Pursuant to this s 16 of the Act the Court may order a transfer of proceedings to the Tribunal only if the proceedings meet the eligibility criteria and the Court believes that it is in the interests of justice.

[5] In opposing the application, the defendant AA does so on the specific basis that it is not in the interests of justice to transfer the proceeding because:

(1)a 10 day trial has already been set down commencing 2 December 2019;

(2)substantial delay would likely result from the transfer;

(3)further delays would likely add to costs; and

(4)the dispute in this proceeding is complex and novel.

Canterbury Earthquakes Insurance Tribunal Act 2019

[6] The Act and a similar application by plaintiffs to transfer a proceeding from this Court to the Tribunal has been the subject of consideration in this Court by Associate Judge Lester and a decision he gave in a judgment dated 1 August 2019.1

[7] In that judgment, Associate Judge Lester at paras [7] – [15] outlined certain background to the Act in the Tribunal process which is usefully repeated here:

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.

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Details

Case: [2019] NZHC 1902
Decision Date: 6 August 2019

CaseChat Overview and Summary

The plaintiffs, Lewis Quinn Kitchen and Sharyn Jane Kitchen, sought to transfer their insurance claim proceedings from the High Court to the Canterbury Earthquakes Insurance Tribunal, pursuant to s 16 of the Canterbury Earthquakes Insurance Tribunal Act 2019. The defendant, AA Insurance Limited, opposed the application on the grounds that it was not in the interests of justice to transfer the proceedings. The primary legal issue before the Court was whether the transfer of the proceedings to the Tribunal was in the interests of justice, in accordance with s 16(2)(c) of the Act.

The Court examined the purposes of the Act, which are to provide fair, speedy, flexible, and cost-effective services for resolving disputes about insurance claims for physical loss or damage to residential buildings, property, and land arising from the Canterbury earthquakes. The Court acknowledged that there might be some initial delays with the transfer of the proceedings from the High Court to the Tribunal, but found that the benefits of the transfer outweighed any potential delays. The Court also noted that the Tribunal's process provides for a more flexible and informal process to be adopted in resolving the parties' dispute, which may have a cost-saving element. Furthermore, the Court rejected the argument that the claim was complex and novel, stating that the Tribunal has the ability to determine whether or not the claim presents undue complexity or is a novel one and, if so, whether it is more appropriate for the Court to decide the claim.

Based on these findings, the Court concluded that the transfer of the proceedings to the Tribunal was in the interests of justice and ordered the transfer pursuant to s 16(4) of the Act. The Court reserved the issue of costs and requested the parties to file submissions if they disagreed with the decision to leave costs where they lay.

Orders