Kristinsson v Southern Response Earthquake Services Limited
[2018] NZHC 2863
•6 November 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-409-000318 [2018] NZHC 2863
BETWEEN HJORTUR KRISTINSSON
Plaintiff
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED
First Defendant
AND
THE EARTHQUAKE COMMISSION Second Defendant
Hearing: 23 October 2018 Appearances:
J Goddard and J Parker for Plaintiff
B Cuff and K Moor for First DefendantJudgment:
6 November 2018
JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
Introduction
[1] The plaintiff (Mr Kristinsson) owns a property in South New Brighton, Christchurch. He alleges that the house suffered significant damage in the earthquakes that occurred on 4 September 2010, 22 February 2011 and 23 December 2011. He has lodged claims with his insurer, the first defendant (Southern Response) and the second defendant (EQC). He sues each, alleging in respect of EQC breach of the Earthquake Commission Act 1993, and in respect of Southern Response, breach of the policy it held over Mr Kristinsson’s house at the time of the earthquakes.
[2] Southern Response applies to strike out parts of the fourth amended statement of claim (4ASOC) dated 23 July 2018. Mr Kristinsson opposes the application. This statement of claim was filed a month after Mr Kristinsson changed solicitors. The
KRISTINSSON v SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2018] NZHC 2863 [6 November 2018]
paragraphs in it which are now challenged appear for the first time in this document. Principally, these relate to references in the pleading to the Fair Insurance Code 2016, the Best Practice Guidelines for the Prioritisation of Vulnerable Customers produced by the Human Rights Commission (Best Practice Guidelines), and a Human Rights Checklist contained within a report of the Human Rights Commission titled “Staying in the Red Zones: Monitoring Human Rights in the Canterbury Earthquake Recovery”.
[3] Mr Kristinsson pleads in paragraph 19 of the 4 ASOC an implied term in his policy with Southern Response that it must comply with the minimum standards contained in the Fair Insurance Code and other non-specified documents described as its “predecessors”. He does not plead incorporation of either the Best Practice Guidelines or the Human Rights Checklist into the policy.
[4] A single cause of action is pleaded against Southern Response. Mr Kristinsson pleads specific breaches of the Fair Insurance Code, non-compliance by specific failures with the Best Practice Guidelines, and non-compliance by various means with the Human Rights Checklist. Mr Kristinsson then pleads that Southern Response’s conduct has caused him and his family significant distress, inconvenience and mental harm.
[5] The balance of the cause of action alleges breach of the policy held with
Southern Response in relation to damage to his house. This portion of the cause of
action is not called into question.
[6] Mr Kristinsson seeks an award of general damages which is quantified in the prayer for relief in the sum of $25,000. Declarations are also sought, to the effect that Southern Response has breached its obligations to Mr Kristinsson pursuant to the policy, pursuant to the Fair Insurance Code, pursuant to the Best Practice Guidelines and also that it has breached its human rights obligations to him.
[7] In the text of the pleadings there are two further passages to which exception is taken, but which are not referred to in the section of the document in which the sole cause of action against Southern Response is pleaded. First, in paragraphs 71 – 73
Mr Kristinsson pleads that Southern Response engaged a private investigator, that it
then took certain steps by way of dissemination of information about Mr Kristinsson and his wife and then records his view that the involvement of the private investigator was a “gross breach” of his privacy.
[8] Secondly, it is said that the reinstatement methodology for Mr Kristinsson’s home promoted by Southern Response appears to be a breach of s 36 of the Health and Safety at Work Act 2015.
Principles to be applied on an application to strike out
[9] Rule 15.1 of the High Court Rules provides:
Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it –
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court’s inherent jurisdiction.
[10] When an application is made on the grounds that there is no reasonably arguable cause of action, the principles to be applied are those enunciated by the Court of Appeal in Attorney-General v Prince and Gardner,1 and the Supreme Court in Couch v Attorney-General:2
(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
1 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.
2 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31] – [33].
(b) The cause of action or defence must be clearly untenable. In Couch
Elias CJ and Anderson J said:3
It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.
(c) The jurisdiction is to be exercised sparingly, and only in clear cases.
This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e)The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation.
The fourth amended statement of claim in more detail
[11] The material in the 4 ASOC to which exception is taken raises five issues in various parts of the document. It is convenient to consider these in turn.
A. The Fair Insurance Code 2016
[12] This is a code of practice promulgated by the Insurance Council of New Zealand as a code of practice for its members. Southern Response is one of those members. It is therefore a code of practice to which Southern Response has subscribed. Breach of the code may be the subject of a complaint to the Insurance and Financial Services Ombudsman.
[13] The code itself, however, does not have any wider legal consequence as
Gendall J said in Domenico Trustee Ltd v Tower Insurance Ltd:4
Overlaid on top of the notion of delay, of course, is the requirement to settle claims under contracts of insurance with reasonable speed. In New Zealand, the Fair Insurance Code states that insurers will “settle all valid claims quickly and fairly”. While that does not, of course, have any strict legal effect, there is authority which supports the same ideal. This issue was recently discussed in Rout v Southern Response Earthquake Services Ltd.5
3 Couch v Attorney-General, above n 2, at [33].
4 Domenico Trustee Ltd v Tower Insurance Ltd [2015] NZHC 981 at [81].
5 Rout v Southern Response Earthquake Services Ltd [2013] NZHC 3262.
[14] As stated Mr Kristinsson pleads that his policy with Southern Response contains an implied term that the latter will “comply with the minimum standards contained in the Fair Insurance Code 2016 (and its predecessors)”. The details of the predecessors are not given, nor does Mr Kristinsson plead any facts on which he relies for the proposition that this Code is implied into the written contract of insurance. He does plead, however, the propositions contained in a number of clauses of the Code, and specific breaches of the Code, principally by way of alleged failures to act as required, but also by sending photographs of Mr Kristinsson and his wife to the police and a firm of investigators, in breach of an obligation of confidentiality.
[15] Thus Mr Kristinsson pleads that the Code is a term of the contract. He pleads terms on which he relies and the conduct said to be in breach of those terms. To that extent these pleadings follow the form of a claim for breach of contract. By way of remedy, the only reference is to a claim in the prayer for relief for a declaration that Southern Response breached its obligations to Mr Kristinsson under the Code. No reference is made to the Code in the claim for general damages, but counsel informed me that this, and the other material to which exception is taken by Southern Response are all directed at bolstering or justifying Mr Kristinsson’s claim for general damages.
[16] In relation to general damages Mr Kristinsson pleads that Southern Response’s conduct has caused him and his family significant distress, inconvenience and mental harm, and he seeks an award of general damages in the sum of $25,000.
B. Human Rights Commission – Best Practice Guidelines for the Prioritisation of
Vulnerable Customers
[17] Mr Kristinsson pleads that the circumstances surrounding Southern Response’s management of his claim trigger the application of these guidelines, as he is within the definition of a vulnerable customer. Southern Response accepts that he is within this definition. Mr Kristinsson pleads various guidelines which place emphasis on the interaction between an agency and a vulnerable customer and pleads also that the guidelines provide that the insurance sector has a role to play in pre- empting and mitigating factors that cause vulnerability among its customers, before those factors eventuate.
[18] In his cause of action Mr Kristinsson pleads that it failed to comply with these guidelines by failing to identify him as a vulnerable customer, failing to establish an effective working relationship with him, failing to provide him with clear information on the claims process and support him through that process, and failing to schedule regular meetings.
[19] As a remedy for these failures Mr Kristinsson seeks a declaration to the effect that Southern Response failed to comply with the guidelines.
[20] At no point in the 4 ASOC does Mr Kristinsson plead that these guidelines are an implied term of his insurance contract or have any other contractual effect, nor does he plead a separate cause of action setting out any basis upon which breach of the guidelines might entitle him to a remedy, nor does he specifically plead that the alleged failures should be taken into account in an assessment of general damages.
[21] In submissions neither of Mr Kristinsson’s counsel was able to explain to the Court the basis upon which any liability was sought to be established for breach of these guidelines. The Court was assured, however, that the intention was that they be factors to be taken into account by the Court in assessing the quantum of general damages for breach of the insurance contract.
C. Human Rights Checklist
[22] Thirdly, Mr Kristinsson pleads that as a state-owned entity, Southern Response is required to observe New Zealand’s human rights obligations which include, in particular, the right to adequate housing, the right to health, and the right of affected people to participate in decision-making about their claims. He refers to a report by the Human Rights Commission titled “Staying in the Red Zones: Monitoring Human Rights in the Canterbury Earthquake Recovery” in which the Commission developed a Human Rights Checklist. He states that he pleads the Checklist in full, and that it applies to the relationship between him and Southern Response. He cites four provisions on which he relies, covering such matters as open and effective communications with affected persons, incorporating flexibility into post-disaster
policies and processes, and recognition of people’s stress in the aftermath of disaster, and how it can be exacerbated by the pressures of dealing with bureaucracy.
[23] As with the pleadings in relation to the Best Practice Guidelines, however, there is no pleading that the Checklist is incorporated into the insurance contract by way of an implied term, there is no cause of action founded on its breach, and there is no specific pleading saying that breach of these guidelines is a factor that has exacerbated the plaintiff’s stress, inconvenience and mental harm which should be taken into account in assessment of general damages. Thus, as with the pleadings in relation to the Best Practice Guidelines, the pleadings on this topic are simply in a vacuum without any relevance to the single pleaded cause of action in contract or the remedies sought in respect of it.
D. Privacy
[24] Mr Kristinsson pleads that Southern Response engaged a private investigation firm to monitor his activities including on social media, in respect of which he made a complaint to the Office of the Privacy Commissioner. The breach of privacy is said to have involved dissemination of photographs of Mr Kristinsson and his wife and releasing his name to the enquiry agency.
[25] In the course of argument I was told that this complaint has been upheld.
[26] Apart from these brief pleadings there is no further reference to this alleged conduct in the 4 ASOC; in particular it does not feature at all in the cause of action against Southern Response or the remedies sought on that cause of action.
E. Health and Safety at Work Act
[27] In pleading his alleged losses Mr Kristinsson takes issue with Southern Response’s proposed reinstatement methodology for his house. As a particular of an allegation that this methodology fails to meet the “as new” replacement standard in his policy, and legal requirements imposed by the Building Act 2004, the Building Code, the Christchurch District Plan and the Resource Management Act 1991,
Mr Kristinsson pleads that the methodology proposed by Southern Response “appears
to be in breach of s 36 of the Health and Safety at Work Act 2015” in certain specified ways.
[28] Again, there is no reference to this material at any point in the pleaded cause of action. Counsel explained this pleading as a means of showing that the work that Southern Response proposed to fulfil its policy obligations could not be undertaken without breaching the Health and Safety at Work Act, and further explained it, at a later point, as being intended to show that the work would not be durable.
Assessment of the 4 ASOC
[29] The starting point for consideration of the five areas of pleading which are challenged by Southern Response is that there is a single claim in contract by
Mr Kristinsson against Southern Response, based on a contract of insurance, a claim pursuant to that policy which has not been met, and in respect of which damages are sought. The basis upon which the claim has proceeded until the filing of the 4 ASOC has been the damage to the house caused by earthquakes in the Canterbury earthquake sequence, and the way in which this is to be remedied or the policy obligations on Southern Response are to be enforced.
[30] Counsel for Southern Response, Mr Cuff, informed me Southern Response has a right under the policy to elect to settle Mr Kristinsson’s claim in cash, but the
4 ASOC does not include a claim for judgment for the cost of reinstating
Mr Kristinsson’s house in accordance with the repair methodology which he maintains should be applied. Rather, the principal remedy sought is a declaration that the plaintiff should be paid this sum. Should the claim proceed on the basis of the 4 ASOC I have no doubt that this would be amended at trial to a claim for judgment for the cost of reinstatement, so I find that this point is not material now.
[31] The real question is whether or not any of the material I have summarised can remain in the document or should be struck out as Southern Response asks. Leaving aside for the present the allegations about the Fair Insurance Code, none of the balance of the material contains any assertion of a breach by Southern Response of the insurance contract. The documents and principles relied on are not said to be contractual terms. Because of that, allegations that those principles have been
breached are irrelevant to the single issue before the Court on liability, namely whether there has been a breach of contract by Southern Response.
[32] Counsel for Mr Kristinsson sought to justify the inclusion of this material in the document as providing a checklist of what Southern Response should have done, against which the Court will be asked to assess what it did do, in coming to a conclusion in relation to general damages. With respect, that entirely misses the point. If the various principles relied on are not terms of the contract, binding under the contract on Southern Response, then any breach of them is irrelevant to a claim for general damages, and thus cannot and would not be taken into account by the Court in assessing general damages. As I pointed out to counsel during the course of debating this issue, this proceeding is not a general enquiry into how this claim has been processed. Enquiries into Southern Response’s conduct on the various bases discussed lies in the hands of others, notably the Human Rights Commission or possibly the Human Rights Review Tribunal. Here, the question is whether a contractual term has been reached, and if so the consequence of that breach.
[33] Indeed, Mr Kristinsson has recently filed a proceeding with the Human Rights Review Tribunal. Mr Cuff informed me that he has followed the wrong procedure because this must be preceded by a complaint to the Human Rights Commission, which must be resolved before any such proceeding can be brought. This Court need not go into that at this point because the hurdle standing in the way of these pleadings remaining in the document in their present form is insurmountable. The paragraphs to which I have referred represent sweeping criticisms of Southern Response’s conduct by reference to various criteria, which may or may not be justified, but on this proceeding this Court is not required to assess the responsibility of Southern Response, if any, except pursuant to the contract of insurance. The expectation that general damages would be assessed after taking into account these factors is misplaced. General damages will be assessed for a specific breach or breaches of contract, if established. If the obligations imposed on Southern Response by the cited documents are not obligations under the contract, they will not be taken into account in assessing general damages.
[34] I return to the pleadings which relate to the Fair Insurance Code. With this, the situation is different. It is expressly pleaded that there is an implied term that the minimum standards in this Code are part of the insurance contract. If that were to be established then the Court would next consider whether the pleaded breach of the Code has been established on the evidence, and then consider whether there should be a remedy as a consequence. In that way, a breach of the Code may be a factor of relevance to an assessment of a sum of money by way of general damages.
[35] Subject to certain inadequacy in the way this part of the claim is pleaded, to which I return later in this judgment, I am satisfied that the pleading of an implied term and breach of it, causing loss, is acceptable. Nothing in this decision implies that the Court would find that a term is implied into the contract of insurance bringing obligations aligning with the principles in the Code. As Mr Cuff rightly pointed out there are express terms in the contract which deal with some if not all of the issues in the Code, and as discussed with counsel during the hearing, widespread repercussions may be involved if the Court were to find that elements of the Code are implied terms of the contract of insurance, as this would apply to many other contracts involving not just Southern Response but other insurers who are bound by the Code as well.
[36] In summary, therefore, there are major issues with the pleading as it stands in relation to four of the five topics canvassed in the provisions to which I have referred, and they must be struck out. It is necessary to consider, though, whether
Mr Kristinsson should be given an opportunity to replead his case incorporating all or some of this material in an acceptable way. As Mr Cuff points out, this would be the sixth pleading of the case, if that were permitted.
Amendments to the pleadings proffered by counsel
[37] After considering the arguments presented by Mr Cuff and various points made by the Court during debate with counsel, Mr Goddard informed the Court that he accepted that certain paragraphs should be deleted from the document.
[38] First, he accepted that the references to the Health and Safety at Work Act should be removed. Secondly, given that privacy issues have already been aired with
the Privacy Commissioner, he indicated that Mr Kristinsson withdraws the three paragraphs of the 4 ASOC that relate to privacy.
[39] Both of these are entirely proper concessions.
Should further amendment be permitted?
[40] Mr Goddard submits that an additional implied term should be pleaded, that there is an obligation on Southern Response to adhere to the Best Practice Guidelines once an insured person has been identified as a vulnerable person within those guidelines. If successful, that would establish a contractual term, and as noted there is already a pleading of how these guidelines have been breached. As a consequential amendment Mr Goddard said that the references to the Human Rights Checklist would be deleted, as would the pleading of alleged failures to comply with this Checklist, and the request for a declaration of breach of this Checklist in the prayer for relief.
[41] The issue remaining for the Court, therefore, is whether the Court should permit a further amended statement of claim to be filed, pleading an implied term incorporating the Best Practice Guidelines into the policy.
[42] It is well established that there is an implied term of good faith in a contract of insurance. This is documented in both judgments and texts, but I need refer only to a passage from a recent case, Young v Tower Insurance Ltd in which the Court said:6
[163] With all these matters in mind, I therefore find that a duty of good faith on the part of the insurer is implied in every insurance contract. It must, as I see it, be a necessary incident of these contracts (long said to be contracts of utmost good faith) and an obligation that flows both ways. To suggest otherwise would make no sense. And in my view, this duty extends beyond a mere obligation on the insurer and the insured of continued disclosure. While the full scope and limits of the duty can be left for another day, I find, as a bare minimum, that the duty requires the insurer to:
(a) disclose all material information that the insurer knows or ought to have known, including, but not limited to, the initial formation of the contract and during and after the lodgement of a claim;
(b) act reasonably, fairly and transparently, including but not limited to the initial formation of the contract and during and after the lodgement of a claim; and
6 Young v Tower Insurance Ltd [2016] NZHC 2956, [2018] 2 NZLR 291.
(c) process the claim in a reasonable time.
[164] As to the requirement that the insurer process a claim within a “reasonable time”, this, however, must take into account the time required to properly investigate and assess all aspects of the claim. What is “reasonable” will depend on all the relevant circumstances. Factors that may need to be taken into account include the type of insurance, the size and complexity of the claim, compliance with any relevant statutory or regulatory rules or guidance, and factors outside an insurer’s control. Further, if the insurer shows that reasonable grounds exist for disputing the claim (whether as to the amount of any sum payable or as to whether anything at all is payable), the insurer does not breach the implied term merely by failing to pay the claim (or the affected part of it) while the dispute is continuing. But the conduct of the insurer in handling a claim may be a relevant factor in deciding whether that good faith duty was breached and, if so, when.
[43] I respectfully agree that the full scope and limits of the duty of good faith can,
as the learned Judge put it, be left for another day. Despite the substantial references in the 4 ASOC to other material, there is no precise pleading by Mr Kristinsson of a breach of the duty of good faith in the single cause of action against Southern Response, despite it being referred to in paragraph 19. As matters stand, therefore, Southern Response does not face a claim that it breached these established and recognised obligations, not to mention any express obligations in the policy to similar effect, yet it faces alleged breaches of a disparate group of principles in various documents as I have described. Whilst there is no obligation on Mr Kristinsson to plead a breach of the more established duty, it is unclear why he has elected instead to try to refer to other obligations in the way I have described.
[44] I infer from Mr Cuff’s argument that he has little faith that Mr Kristinsson’s claim would be repleaded in acceptable terms if an opportunity were granted to
Mr Kristinsson to do so. He indicated that the Court should be very specific in any permission it may give to replead, so that Southern Response is not faced with yet another unsatisfactory pleading just four months before trial. I agree with Mr Cuff on this point. I have not needed to review why the pleadings for Mr Kristinsson are already the subject of a fourth amended statement of claim, but I accept that although this is a proceeding against two defendants based respectively on statutory duties and contractual duties that are said not to have been complied with, claims of this nature can evolve factually as investigations into damaged properties take place. Having said that, the point must surely have been reached where each side in this case has a clear
picture of what it will present to the Court and any further pleading must therefore be confined to remedying the defects in the pleading as it stands.
[45] It is an established principle that an opportunity should be given for a pleading to be remedied if in fact it is apparent to the Court that this can realistically occur.7 It is apparent to the Court in this case that the problems with the pleading can be cured and I am satisfied, for three reasons, that an opportunity should be given to
Mr Kristinsson to file a further amended statement of claim. First, Mr Goddard volunteered amendments by way of deletion of paragraphs of the statement of claim, and given that these paragraphs are to be struck out, an amended pleading is desirable
to make Mr Kristinsson’s case a great deal more clear to both the Court and Southern
Response.
[46] Secondly, the numbering sequence in the statement of claim is defective – after paragraph 30, the numbering sequence jumps back to 26. This would cause confusion at trial.
[47] Thirdly, inclusion of a pleading of a further implied term as discussed will not, in my view, materially alter the duration of the trial or put Southern Response to any material additional expense. That is not to say, of course, that at trial the Court will accept that there are any implied terms in the insurance contract apart from the implied term recognised and discussed in Young v Tower Insurance Ltd.8 It appears to me that the evidence that might be led in relation to the amended alleged implied terms would in any event be largely, if not entirely, the same material Mr Kristinsson would present in relation to his claim that the alleged breach of contract by Southern Response has caused him “significant distress, inconvenience and mental harm” as already pleaded in paragraph 98 as the reason for an award of general damages.
[48] It follows, therefore, that the Court will permit the filing and service of a further amended statement of claim, but the basis upon which the pleading may be amended is prescribed as follows:
7 Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at 324.
8 Young v Tower Insurance Ltd, above n 6.
(a)Subject to (g) below, paragraph 19 may be amended. The only new material that may be included is a reference to there being an implied term that Southern Response was under an obligation to adhere to the Best Practice Guidelines discussed in this judgment. The effect of this will be that paragraph 19 will contain five alleged implied terms. It is for the plaintiff to consider whether the alleged implied terms should be amended to only an allegation that there is an implied term of good faith, and that the four matters already paragraphs (a), (c) and (d) of paragraph
19, together with the Best Practice Guidelines, should be pleaded as elements of the overall duty of good faith. I reiterate, though, that amendment to paragraph 19 is not to broaden the ambit of the alleged implied terms beyond the inclusion of reference to the Best Practice Guidelines.
(b)There may be consequential amendments within the second cause of action alleging with precision how it is said that Southern Response has breached each of the pleaded implied terms which are pleaded.
(c)The following paragraphs are struck out and will not be re-pleaded in their present form:
29 – 32 inclusive (referring to the Human Rights Checklist)
71 – 73 inclusive
87(e)
96(a)
97
(d)Paragraphs 26 and 27, referring to the Best Practice Guidelines, will be deleted or re-cast as reference to the Best Practice Guidelines will now be repleaded in paragraph 19. It is not for the Court to draft or proffer an amended pleading, but at the least it appears that paragraph 26 should be deleted.
(e)The “conduct” referred to in paragraph 98 is to be expanded by particulars so it is clear what conduct is alleged to have caused the plaintiff (not his family who are not parties to this proceeding) the effects described. This is to be by cross reference to the numbered paragraphs in which that conduct is particularised.
(f) Numbering sequence errors are to be remedied.
(g)As the contract of insurance contained express obligations on Southern Response that appear to cover similar matters to those raised as implied terms, there may be an additional pleading of those express obligations, followed by a pleading of a breach of them with particulars, and cross reference to this in the pleading of the basis for general damages. The pleading in relation to implied terms is not to cover matters which are covered by express terms, as this would be reptitive.
[49] Because the right to file an amended pleading which is given by this judgment is tightly prescribed, I reserve leave to Southern Response to file a memorandum for the attention of an Associate Judge if it forms the view that the amended document does not comply with the terms of this judgment. If the Court agrees, the issue of strike-out will be revisited.
Costs
[50] Mr Goddard says that even if strike-out orders are made the claim will still be on foot and it will still contain a claim for general damages. On that basis he says that
Mr Kristinsson will have been largely successful in defending the application.
[51] Southern Response says that if strike-out orders are made, it will have been completely successful, even if amendment is permitted. Mr Cuff says there were communications about the state of the 4 ASOC before this application was filed, in an attempt to have it remedied by way of a request for further particulars, but the response to that request was inadequate.
[52] It is beyond argument that Southern Response has mainly succeeded on its application. It did not apply to have the entire proceeding struck out, only the passages identified and discussed in this judgment. The only part of the 4 ASOC to which it took exception where it has not succeeded is the implied term in relation to the Fair Insurance Code. I have a clear view that the passages that have been struck out should not have been in the 4 ASOC in the first place because they were unrelated to the single cause of action pleaded against Southern Response. The requirements of adequate pleadings, which are prescribed by r 5.26 of the High Court Rules 2016, are well established and have not been complied with in this instance. Mr Kristinsson has not enjoyed any appreciable measure of success.
[53] Accordingly, Southern Response is entitled to costs.
Outcome
[54] The 4 ASOC is partially struck out as stated in paragraph [48](c).
[55] If a fifth amended statement of claim is filed and served it will comply in all respects with this judgment.
[56] A right to seek review of the fifth amended statement of claim is reserved in accordance with paragraph [49].
[57] Mr Kristinsson will pay costs to Southern Response on a 2B basis plus disbursements as fixed by the Registrar. These may include travel for one counsel.
J G Matthews
Associate Judge
Solicitors:
WCM Legal, WellingtonDLA Piper, Wellington
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