Mathias v Earthquake Commission

[2023] NZHC 1951

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

2021-009-2441

[2023] NZHC 1951

BETWEEN

CAROL ANN MATHIAS

Plaintiff

AND

THE EARTHQUAKE COMMISSION

Defendant

Hearing:

(On the papers)

Counsel:

G D R Shand for Plaintiff

N L Walker and C J Curran for Defendant

Judgment:

25 July 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

MATHIAS v THE EARTHQUAKE COMMISSION [2023] NZHC 1951 [25 July 2023]

[1]    Counsel for The Earthquake Commission (EQC) in a memorandum dated     3 July 2023, sought that costs be fixed in respect of two interlocutory hearings resulting in judgments dated 25 November 2022 and 31 March 2023. Mr Shand, counsel for the plaintiff, has filed a memorandum in reply.

[2]    Mr Shand does not oppose costs on a 2B basis being fixed in respect of his client’s unsuccessful application for leave to appeal which resulted in the judgment of 31 March 2023.

[3]    Accordingly, there is an order that the plaintiff is to pay EQC $7,318.28 (being costs and disbursements) in respect of the judgment issued on 31 March 2023.1

[4]    I should mention here, there was a further hearing on 8 November 2022, which resulted in a judgment of 9 November 2022,2 where success was shared between the parties and counsel are agreed in respect of that application, costs should lie where they fall. I order accordingly.

[5]    In respect of the 25 November 2022 judgment,3 Mr Shand submits this judgment dealt with his client’s application to vary the class, how notification to the class would occur, and EQC’s application for a copy of the funding agreement entered into by Ms Mathias. Mr Shand submits each party had wins and losses and he notes EQC’s application for access to Ms Mathias’ funding agreement was declined.

[6]    EQC notes the orders made in relation to the form, content and methods of advertising the class notice and opt-in form were substantially different from the orders sought by the  plaintiff.  EQC  submits  it  was  the  successful  party  with  the majority of its objections either being upheld or belatedly conceded by the plaintiff. EQC also notes its application regarding settlement communications was opposed by the plaintiff, but that opposition was withdrawn following the hearing.

[7]    EQC has calculated its costs entitlement at $16,781.92 including disbursements.

1      Mathias v The Earthquake Commission [2023] NZHC 705.

2      Mathias v The Earthquake Commission [2022] NZHC 2941.

3      Mathias v The Earthquake Commission [2022] NZHC 3105.

[8]    Mr Shand submits costs should lie where they fall on that issue, submitting “all other issues roughly balance out”.

[9]    I am satisfied EQC was in substance the successful party in the hearing resulting in the judgment of 25 November 2022, save for its application in relation to access to the funding agreement. It was the second time it had been unsuccessful in seeking the funding agreement.

[10]   I consider there should be some adjustment to reflect that position. However, the starting point is that “success on more limited terms is still success”.4 However,  a successful party’s failure in relation to a part of its claim can also be taken into account.5

[11]Given EQC was substantially successful, I fix costs in its favour in the sum of

$16,781.92 less 25 per cent to reflect that it failed on its application to obtain a copy of Ms Mathias’ funding agreement. There is an order accordingly.

Associate Judge Lester

Solicitors:

Grant Shand, Barrister, Auckland (for Plaintiff) Russell McVeagh, Wellington (for Defendant)

4      Robert   Osborne   (ed)   McGechan   on   Procedure   (online   ed,   Thomson   Reuters)    at [HR 14.2.01(1)(b)].

5      At [HR 14.7.01(b)].