Marchand v Jackson - [2012] NZHC 944

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-000810 [2012] NZHC 944

BETWEEN NICOLA JAYNE MARCHAND, JACQUES RENARD MARCHAND AND PATRICK GREGORY COSTELLO
First Plaintiffs

ANDNICOLA JAYNE MARCHAND AND JACQUES RENARD MARCHAND Second Plaintiffs

ANDJOHN F JACKSON Defendant

ANDIAG NEW ZEALAND LIMITED Third Party

Hearing: 29 March 2012

Appearances: G A Hair for Plaintiffs
B R D Burke and K Hill-Dunne for Defendant
G S A Macdonald for Third Party

Judgment: 2 May 2012

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] In September 2010 and February 2011 the plaintiffs’ home, and a substantial part of its contents, along with the land on which the home stands and other improvements, were substantially damaged in two earthquakes.

[2] In May 2009 they had engaged the defendant to arrange insurance cover for them on their home and contents, their motor vehicles and the assets in the first- named plaintiffs’ medical practice. Although the defendant assured the plaintiffs that cover had been arranged with New Zealand Insurance (NZI), that was not the case.
This came to light after the earthquake in September 2010. The plaintiffs have

NICOLA JAYNE MARCHAND, JACQUES RENARD MARCHAND AND PATRICK GREGORY COSTELLO V JOHN F JACKSON HC CHCH CIV-2011-409-000810 [2 May 2012]

brought this proceeding alleging breach of contract, breach of a duty of care owed in tort and breach of certain provisions of the Fair Trading Act.

[3] At material times the third party was the indemnifier of the defendant for professional liability. The defendant alleges that the third party should indemnify him for any loss on the part of the plaintiffs for which he might be found liable. The third party denies liability. It has brought an application for summary judgment in its favour on the defendant’s third party claim, relying on one or other of two exclusion provisions in the policy. The issue on this application is whether either of these exclusions applies.

Principles of summary judgment

[4] Rules 4.7(2) and 12.2 of the High Court Rules provide that the Court may give judgment against a defendant if a third party satisfies the Court that none of the causes of action in the defendant’s claim can succeed. The onus is on the third party to establish this position to the satisfaction of the Court: see, for example, Garnett v Tower Insurance Ltd.1

[5] In this case, as will be seen, it is necessary to have regard to two principles in relation to the evidence before the Court, first that the Court need not accept uncritically evidence which is inherently lacking in credibility (for example where it is inconsistent with undisputed contemporary documents or is inherently
improbable): Eng Mee Yong v Letchumanan,2 and secondly, that evidence must be

considered in a robust and realistic manner: Bilbie Dymock Corporation v Patel.3

[6] As will also emerge, it is alleged by the third party that in certain respects the actions of the defendant which are relevant to this case were dishonest. Bearing in mind that an application…

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 Marchand v Jackson

Details

AGLC: Marchand v Jackson [2012] NZHC 944
Case: [2012] NZHC 944
Decision Date: 2 May 2012

CaseChat Overview and Summary

In the case of Marchand v Jackson, the plaintiffs sought damages from the defendant, who had been engaged to arrange insurance for them but had failed to do so. The third party, IAG New Zealand Limited, which had provided professional indemnity cover to the defendant, sought to be indemnified for any liability the defendant might have to the plaintiffs. The third party applied for summary judgment against the defendant's claim against it. The court had to determine whether the defendant's conduct was dishonest or deliberate, and if so, whether it was in connection with the civil liability that would otherwise be covered by the policy. The court found that while the defendant's conduct was deliberate, there was insufficient evidence to conclude that it was dishonest. The application for summary judgment was declined, and costs were reserved.

Orders