Moorhouse Commercial Park Limited v Vero Insurance New Zealand Limited
[2022] NZHC 3260
•6 December 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-997
[2022] NZHC 3260
BETWEEN MOORHOUSE COMMERCIAL PARK LIMITED
PlaintiffAND
VERO INSURANCE NEW ZEALAND LIMITED
Defendant
Hearing: 18-20, 22, 27-29 July, 1-3 August and 3-4 October 2022 Appearances:
S P Rennie, J E Bayley, S A Foss and F H Scrase for Plaintiff J F Anderson QC, C M Brick and A R Cornwell for Defendant See addendum regarding appearance dates
Judgment:
6 December 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 6 December 2022 at 3.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
MOORHOUSE COMMERCIAL PARK LIMITED v VERO INSURANCE NEW ZEALAND LIMITED [2022] NZHC 3260 [6 December 2022]
Contents
Introduction........................................................................................................... [1]
The property and buildings.................................................................................... [8]
33 – 41 Moorhouse Avenue [10]
43 Moorhouse Avenue [15]
The insurance policy............................................................................................ [17]
The Policy Summary [19]
The Material Damage Policy [23]
The earthquake damage....................................................................................... [36]
The claims process............................................................................................... [42]
What does the policy standard require?............................................................... [77]
Will repairs by epoxy resin injection repair concrete elements to the policy standard? [83]
Evidence for Moorhouse [83]
Evidence for Vero [97]
Discussion [120]
Disputed issues – repairs to 33 – 41 Moorhouse Avenue [144]
The 33 – 35 intertenancy wall........................................................................... [146]
Discussion [149]
41 Moorhouse Avenue northern infill panels..................................................... [153]
Discussion [155]
Southern and eastern infill panels to 41 Moorhouse Avenue [157]
Discussion [161]
Floor slab........................................................................................................... [164]
Are the slopes in the floor slab caused by the CES? [166]
How should the cracks be repaired? [169]
Discussion [172]
Repairs to the roof............................................................................................. [176]
Discussion [177]
Repair scope – 43 Moorhouse Avenue.............................................................. [180]
The concrete wall panels................................................................................... [181]
Discussion [185]
First floor slab.................................................................................................... [190]
Discussion [194]
Ground floor slab............................................................................................... [196]
Discussion [197]
Hardstand area................................................................................................... [199]
Discussion [202]
Is building consent required?............................................................................. [204]
Discussion [209]
Indemnity entitlement........................................................................................ [215]
Discussion [224]
The dispute over claims preparation costs......................................................... [232]
Relief................................................................................................................. [235]
The scope of works [236]
The approach to determining indemnity value [239]
The claim for interest [245]
The claim for an order for an enquiry into damages [247] Liability to pay claims preparation costs and professional fees [248] Order reserving leave [251]
Result................................................................................................................. [252]
Costs.................................................................................................................. [253]
Introduction
[1] At 33 – 43 Moorhouse Avenue, Christchurch, sit two commercial buildings. They are fully functional and tenanted, although they have suffered some damage from the Canterbury Earthquake Sequence (CES).
[2] The buildings were insured with Vero Insurance New Zealand Ltd (Vero) at the time of the CES. The owner, Moorhouse Commercial Park Ltd (Moorhouse), lodged claims under its insurance policy for earthquake damage and, in due course, Vero accepted the claims. However, more than 10 years later, they have been unable to agree on what is required to reinstate the building to the policy standard, and consequently, on what Moorhouse should be paid.
[3] At the heart of the stand-off is a dispute over whether epoxy resin will repair the cracks in the concrete columns, beams and floors of the buildings to a condition substantially the same as when new.
[4] Moorhouse says epoxy repairs will not achieve this standard, and the buildings will have to be substantially dismantled to replace these components. That work will require new foundations and replacement of the infill walls. The extent of the works required will trigger other requirements under the Building Act 2004, including earthquake strengthening, fire upgrades and disability access. The estimated cost of these works will far exceed the sum insured.
[5] Vero says the use of epoxy resin is a well-accepted repair method, and it will restore the building to the policy standard. It also says the repairs required are straightforward and will not require building consent, nor will they cost more than the amount of approximately $1,140,000 which has already been paid to Moorhouse. In any event, Vero says the indemnity payment (which is all Moorhouse is entitled to at this point) cannot exceed the indemnity value of the buildings,1 and what it has paid Moorhouse to date exceeds that by some margin. Vero also disputes the plaintiff’s
1 Calculated in a conventional way, which may be the market value of the building or the overall depreciated replacement value based on either physical or market depreciation.
claim for around $485,000 in claim preparation costs, saying this sum was not all reasonably incurred in preparing Moorhouse’s claim. Vero also says such costs are payable within the total sum insured.
[6] The primary relief sought by Moorhouse is a declaration that the structural repair scheme promoted by its experts is what is required to repair the buildings to the policy standard. That will then enable the claim to be settled on an indemnity basis, as indemnity value is calculated by reference to the cost of reinstatement less a due allowance for depreciation and deferred maintenance. Moorhouse also seeks other related declarations and orders requiring Vero to fulfil what Moorhouse says are Vero’s obligations under the policy.
[7] At issue is whether the repair scope proposed by Moorhouse is the appropriate scope and whether Vero has otherwise failed to meet its obligations under the policy.
The property and buildings
[8] The property is a large commercial site covering approximately 4,500 square metres. It is situated on the north side of Moorhouse Avenue in Christchurch, but also has access from Selwyn Street, which runs off Moorhouse Avenue.
[9] There are two buildings on the property. One is designated as 33 – 41 Moorhouse Avenue, and the other as 43 Moorhouse Avenue. The external areas of the property are comprised of hardstand, which is mostly asphalt but with an area of concrete to the rear of 41 Moorhouse Avenue.
33 – 41 Moorhouse Avenue
[10] The building at 33 – 41 Moorhouse Avenue was progressively built and extended between 1954 and 1997. It comprises six separate tenanted areas, as identified in the photograph below.
[11] The original portion of the building, built in 1954, comprised a single-storey warehouse (35 Moorhouse Avenue) and a single-storey office (37 Moorhouse Avenue). By 1961, a further single-storey warehouse (33 Moorhouse Avenue) was added to the western side of the original warehouse as well as a further standalone warehouse to the northeast of those buildings (41 Moorhouse Avenue). In the period from 1961 to 1964, a second storey was added to the office at 37 Moorhouse Avenue (37A Moorhouse Avenue) and, in 1962, the two warehouses were extended to the north. In 1980, there was a further extension of the warehouses to the north. Part of the 1962 extension, along with the 1980 extension, forms the premises at 39 Moorhouse Avenue. In 1980, a mezzanine floor was added within the southern end of 35 Moorhouse Avenue. In 1992, a reinforced concrete block masonry partition wall was added between 33 and 35 Moorhouse Avenue, and a mezzanine floor was added within the two southern bays of 33 Moorhouse Avenue.
[12] The building primarily comprises shallow concrete footings with concrete slab floors, reinforced concrete columns and beams, and brick or concrete block infill walls
between the columns and steel rafters. The roof is comprised of corrugated asbestos sheets with Georgian wired glass panels incorporated into it to let in light.2 However, the roof over 37A is corrugated iron.
[13]The tenancies within the 33 – 41 building are as follows:
Address:
Use:
33
Gymnasium on both the ground and mezzanine floors
35
Retail on the ground floor with offices/storage on the mezzanine floor
37
Food retail business
37A
Offices
39
Car workshop and offices
41
Gymnasium, physio and sports testing facility
[14] Since the earthquakes there have been subsequent alterations, including works to some exterior walls at 41 and to the internal wall between 33 and 35. Where Vero paid for those works there is a dispute as to whether they are permanent or temporary repair works.
43 Moorhouse Avenue
[15] The building at 43 Moorhouse Avenue is located to the north-east of the building at 33 – 41 Moorhouse Avenue. It was built around 2004 and comprises a two-storey office building. It is constructed from reinforced concrete pre-cast tilt panels (some of which were recycled), which are placed between concrete columns and steel beams. The foundation comprises reinforced concrete shallow strip footings and pads with a 100 mm thick reinforced concrete slab floor. The first floor consists of a concrete slab cast on steel tray decking. The roof comprises long run steel supported on steel purlins and diagonal bracing.
2 There are glass panels with wire mesh embedded in them, which are incorporated in this building as part of the roof structure.
[16] Both buildings are constructed in close proximity to neighbouring buildings which has limited or prevented inspection of one external wall in each case. For the building at 33 – 41 Moorhouse Avenue, a large part of the west wall lies on the boundary of the property and is abutted by the neighbouring building. For the building at 43 Moorhouse Avenue, a large part of the east side of the building is located approximately 100 mm away from the neighbouring building, making it difficult to inspect for damage and impossible to access for repairs.
The insurance policy
[17] At the time of the CES, Moorhouse held an insurance policy with Vero that insured the buildings which are the subject of these proceedings, along with another building at 90 Hazeldean Road. The Hazeldean Road building claim was settled in late 2019. Other buildings in Hazeldean Road and Braddon Street were owned by entities related to Mr Dennis, the director of Moorhouse, and were also insured by Vero. These other claims were also settled in late 2019. Until then, the claims for all buildings were, to a large extent, managed together, a fact which forms part of the history of the claims process.
[18] The insurance policy which Moorhouse had with Vero at the time of the CES comprises:
(a)a four page Policy Summary outlining the cover for that period under Policy Number HO BSP 3928629; and
(b)a 25-page Vero/BrokerWeb Group Material Damage Policy in respect of the properties.
The Policy Summary
[19] The Policy Summary stipulates the period of insurance was 31 March 2010 to 31 March 2011. It also records certain “Cover Codes” which applied as optional extras. These codes, E and R, identified that insurance cover for the buildings included Natural Disaster Cover (which included cover for earthquakes) and Replacement
Value Cover as defined. The cover for earthquake damage had a deductible, or excess, of 2.5 per cent of the adjusted loss, with a minimum excess of $2,500.
[20] The Policy Summary states that the sum insured is $3,349,000 plus GST for “33 – 39 Moorhouse Avenue” and $1,479,000 plus GST for “41 – 43 Moorhouse Avenue”. Vero acknowledges that the addresses linked to the sums insured do not match the physical layout of the buildings but says the parties have proceeded on this apportionment of the sums insured, and it is too late for Moorhouse to advance a different approach. Moorhouse, however, says the sum of $3,349,000 plus GST includes the 41 tenancy and therefore pertains to the 33 – 41 Moorhouse Avenue building, whereas the $1,479,000 plus GST relates to the 43 Moorhouse Avenue building alone. This is supported by the fact that the valuation used to set the sum insured for “41 – 43 Moorhouse Avenue” clearly only values the two-level office building at 43 Moorhouse Avenue. There is also no logical reason for part of one building, being the 41 tenancy, to be insured along with the standalone 43 Moorhouse Avenue building, rather than with the building it forms part of, which is the 33 – 41 Moorhouse Avenue building.
[21] While Vero says it has proceeded on the basis that the respective sums insured should be allocated between the buildings, as is described in the Policy Summary, and Moorhouse has not pleaded rectification, I consider it is necessary to resolve this to understand Vero’s obligations under the policy. It is difficult to see that the descriptions of the buildings to which each sum insured applies are anything other than errors which have been carried through to the policy from the erroneous descriptions of the buildings in the valuations. Applying the standard approach to interpretation of contracts, being to ascertain the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time of the contract, I accept Moorhouse’s view that the sums insured apply to the respective separate buildings.3
[22] However, this issue may not be of any consequence given the parties acknowledged in closing submissions that unless I adopted a hybrid of the parties’
3 Firm PI 1 Ltd v Zurich Australia Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60]-[61].
respective repair schemes, the allocation of the sums insured across the buildings would have no material effect on what was to be paid.
The Material Damage Policy
[23]The Material Damage Policy document contains:
(a)A general indemnity clause.
(b)A Schedule setting out much the same information as the Policy Summary, including the period of insurance, a description of the insured property, the sum insured and any additional cover codes. It also sets out any special limits or sums insured for discrete aspects of the insurance including for some optional types of cover.
(c)A section containing relevant definitions, conditions and exclusions relating to the policy.
(d)A section containing further conditions, described as Memoranda, applying to the policy.
(e)A section which sets out the terms of cover available under Optional Memoranda if that cover has been specified in the Schedule.
[24]The policy’s main insuring clause (described as the Indemnity) provides:
If, during the Period of Insurance, any:
Physical Loss or Damage … happens to any Insured Property;
…
then subject to the terms, conditions and exclusions of this Policy [Vero] will indemnify the Insured for the loss, damage and costs.
The clause also stipulates that, subject to some specified clauses (such as that dealing with GST), Vero’s liability:
… will not exceed the Total Sum Insured and/or Special Limits/Sums Insured specified in the Schedule and/or the limits specified in any Memorandum.
[25] The policy’s Basis of Settlement clause provides that Vero “will pay any insured costs and may at its option repair, reinstate or replace lost or damaged property or any part of it, or may pay the amount of loss or damage”.
[26] In the section of the policy headed “Optional Memoranda”, the Reinstatement Memorandum is set out. Cover under that memorandum applies in this case, and it provides:
In the event of any Insured Property to which this Memorandum applies being lost, damaged or Destroyed, the basis on which the amount payable under this Policy is to be calculated will be the cost of Reinstatement of the property, subject to the special provisions of this Memorandum.
[27] The parties agree that the relevant definition of “Reinstatement” in the Memorandum for the purposes of this claim is:
… the repair of the damage and the restoration of the damaged portion of the property to a condition substantially the same as, but not better or more extensive than, its condition when new, but incorporating such alterations as are necessary to comply with any Act of Parliament or Regulation.
[28] Cover for additional work to comply with Acts and Regulations when reinstating is further addressed in the Special Provisions of the Reinstatement Memorandum. They provide:
The amount payable under this Memorandum will include the cost incurred in Reinstatement which is necessary to comply with any Act … or Regulation, provided that the amount payable will not include the cost incurred in work necessary to comply with any Act, Regulation or By-Laws:
(a)to the extent to which such work had already been required of the Insured by notice served prior to the happening of the loss, damage or Destruction; or
(b)in respect of Undamaged property or Undamaged portions of property.
“Undamaged” is defined to mean “not damaged physically and directly by an insured contingency”.
[29] However, cover is expressly brought back in for compliance costs associated with undamaged property by two further policy memoranda. These include the Redundant Foundations Memorandum, which provides:
Notwithstanding “Special Provision 1(b) of the Reinstatement Memorandum” or anything in this Policy to the contrary, where any undamaged or partly damaged building or plant foundations are unsuitable for further use and/or are rendered redundant for any reason whatsoever … in consequence of loss or damage to the superstructures or plant resting on them, the affected foundations will be deemed to be and treated as constructively totally lost for the purpose of claims under this Policy and any of its Memoranda.
[30] In addition, the Undamaged/Unharmed Property Memorandum provides that the policy covers:
Costs actually incurred in the demolition, damage/destruction, removal and subsequent repair and reinstatement of otherwise undamaged/unharmed property (including additional costs necessary to comply with any Act of Parliament or any regulations made under or in pursuance of any such Act or with any By-Laws of any Local Authority) necessary to enable reinstatement of any Insured Property following its loss or damage by any insured peril.
[31]A further special provision in the Reinstatement Memorandum provides:
In any of the following circumstances, no payment will be made beyond the amount which would have been payable had this Memorandum not been incorporated in the Policy:
(a)if the Insured elects not to Reinstate the property;
(b)if the work of Reinstatement is not commenced and carried out with reasonable despatch;
(c)until the cost of Reinstatement has actually been incurred or agreed between [Vero] and the Insured.
[32] Thus, here, where reinstatement work has not commenced,4 the parties accept that Vero’s only obligation in terms of the damage is to pay indemnity value. Indemnity value is defined in the policy as: “The reinstatement cost of the property to a condition not better or more extensive than when new, less due allowance for depreciation and deferred maintenance”.
4 Save for some minor repair work where it is contested whether it is reinstatement work as discussed later in the judgment.
[33] There is also a Claims Preparation Costs Memorandum in the policy. This provides that Vero will indemnify the insured for “all costs and expenses reasonably incurred for the purpose of assessing, preparing, presenting or certifying any claim” accepted under the policy. No excess is payable on the claim for these costs and expenses.
[34] The Professional Fees Memorandum in the policy extends cover to include the cost of specified consultants’ fees if they are “reasonably incurred in reinstating damage to Insured Property”. Unlike the Claims Preparation Costs Memorandum, the Professional Fees Memorandum expressly states that such fees and costs are included in the Total Sum Insured. The Memorandum also says that it does not apply to fees for preparing claims which are dealt with under the separate Claims Preparation Costs Memorandum.
[35] There is a dispute over whether claims preparation costs fall within the total sum insured or are to be paid in addition to it. There is also a dispute over whether the claims preparation costs sought by Moorhouse are reasonable. In its statement of claim, Moorhouse sought the appointment of a mutually acceptable loss adjuster to determine the amount of claims preparation costs owing under the policy.5 Vero resisted that relief, considering it to be of little utility in resolving what costs are properly claimable. In closing, Moorhouse confirmed it no longer sought that relief. Instead it sought a direction that the parties consult with a view to appointing an independent expert to resolve that dispute.
The earthquake damage
[36] There is agreement between the parties on the visible extent of damage, although there is disagreement as to whether it was all caused by the CES. Vero contends that much of the visible damage was pre-existing. In particular, it says many of the cracks in concrete components of the buildings were likely shrinkage cracking which occurred in the first year or two since that component was constructed, or thermal cracking because of exposure to temperature changes. Vero has, however, scoped to repair all the damage where there is likely to be at least some earthquake
5 Pursuant to a provision in the policy entitled Mutually Acceptable Adjustors.
damage, and in respect of cracks to the beams and floors, this means repairing all cracking in excess of 0.2 mm in width regardless of its cause.
[37] All the earlier engineering reports commissioned in respect of the buildings describe the damage as “minor”, “relatively minor”, or “moderate” in nature. Those descriptors are certainly consistent with the extent of damage which I observed on a site visit. The visible cracks were generally very fine, and there was surprisingly little damage to brick and block walls which are usually vulnerable to earthquake shaking. Furthermore, all the areas were functional and tenanted, reinforcing the impression that the damage was mostly cosmetic. However, Moorhouse, relying on advice obtained more recently from its structural engineers, says there is likely to be other damage which is not visible, and which means the damage cannot be described as “minor”.
[38] The extent of visible damage to the building at 33 – 41 Moorhouse Avenue (whether caused by the CES or otherwise) includes the following:
(a)cracking to concrete columns and beams;
(b)cracking to concrete masonry block walls;
(c)separation of infill walls from concrete frames;
(d)cracking to areas of the concrete floor slab;
(e)cracking to plasterboard linings;
(f)cracking to concrete eaves near beam column joint; and
(g)damage to roofing.
[39] The 43 Moorhouse Avenue building exhibits similar damage. This includes cracking and some spalling on pre-cast concrete wall panels, although it is agreed that at least some of the visible damage was pre-existing. There is also damage to interior
linings and cracking of the first floor slab (which, again, is agreed to be, at least in part, shrinkage cracking which occurred soon after it was first poured).
[40] There is also damage to the external hardstand areas. Both concrete and asphalt surfaces are cracked, and the asphalt is out of level. Again, the cause of this damage is disputed. The drainage systems are damaged as internal inspection shows there is mud and stones in the stormwater lines and cracking of sewer lines.
[41] Although much time was spent in evidence debating the causes of the visible crack damage in the concrete elements, Vero proposes to repair the majority of the damage regardless of the extent to which it was caused by the CES and so, I will not discuss causation further unless it is relevant to the proposed repair strategy.
The claims process
[42] It is important to document the history of these claims as Moorhouse is critical of Vero for not determining the cost of reinstatement sooner and then paying Moorhouse the indemnity value (calculated in accordance with the terms of the policy). If, as Moorhouse claims, the cost of reinstatement exceeds the sum insured for each building, then Moorhouse seeks an order for an inquiry into damages suffered by it for Vero’s failure to calculate and pay indemnity value within a reasonable timeframe.
[43] Moorhouse, through its director, Mr Peter Dennis, and its insurance broker, lodged claims with Vero for damage to its commercial buildings, including the Moorhouse Avenue properties, following the CES. Other buildings at Hazeldean Road and Braddon Street, which were owned by Dennis family interests, were also the subject of claims with Vero for earthquake damage.
[44] Vero engaged MWH Mainzeal (MWH) to provide earthquake claim assessment services for Vero and, through MWH, Vero offered managed repair programmes for earthquake damaged buildings. Whether or not that option was taken, Vero used MWH to prepare a preliminary damage assessment and repair scope as part of Vero’s claims process. Where these indicated a building was likely to be repairable within the sum insured, detailed repair scoping would commence along with
preparation of full engineering reports for the repair work. These reports (engineering, repair scope, and costing) could be obtained by either MWH or the insured. Once the scope and cost of repairs had been agreed, the insured could choose to have the repairs undertaken or, although outside the scope of the policy, Vero may offer a cash settlement.
[45] For Moorhouse’s claims, Vero engaged external loss adjustors, Cunningham Lindsey, and the claims were referred promptly to MWH. Cunningham Lindsey produced reports in April 2011 which set out a brief description of the damage identified following inspection and an estimate of the likely repair costs, which were modest.
[46] By that time, Moorhouse had engaged Hawkins to undertake some repairs and, as part of that work, Hawkins replaced the upper section of the concrete block fire wall between 33 and 35 Moorhouse Avenue with timber framing and a double-layer of GIB board on each side. Vero agreed to meet the cost of all this work at $57,804. Vero says this was understood to be a permanent earthquake repair, but Moorhouse rejects that, saying it was temporary repair work only, noting the policy extends to meet the costs of such works if they are required to secure the property or to make it safe or suitable for continued use.
[47] In late 2011, Moorhouse asked Vero to meet the cost of replacing the old asbestos roof at 33 – 41 Moorhouse Avenue. Moorhouse obtained a quote for
$137,793 plus GST from Newfield Roofing for the roof replacement, which it submitted to Vero. Vero approved replacement of the earthquake damaged roof, although the work was not undertaken by Moorhouse.
[48] In November 2011, MWH engaged Cook Costello to provide a Detailed Engineering Evaluation (DEE) which reported on the buildings’ seismic capacity and engineering design for necessary repairs, although Mr Dennis says he was not aware of this. In February 2012, Moorhouse advised it wished to have its own engineers, Structex, provide the necessary reporting. Consequently, MWH advised Cook Costello to stop work. From this point, Moorhouse assumed responsibility for
arranging engineering services for the earthquake repairs. However, MWH remained involved on Vero’s behalf to facilitate the claim verification process.
[49] In May 2012, MWH arranged for a section of the northern wall at 41 Moorhouse to be replaced upon instruction from Moorhouse’s engineers, Structex. Vero met the cost of this work at $10,865. Vero understood this to be a permanent earthquake repair. In support of this view, Vero refers to an email dated 18 May 2012 from Mr Michael Kean at Vero to Adam Walker at Structex, which says:
We have decided to deconstruct and permanently replace the blockwall with a hardie board type construction at the request of the owner. Could you please contact the owner (Peter Dennis) on [phone no] to confirm the type of construction he would like ….
[50] Mr Walker confirmed by reply email that once “the detailing is complete we can approach Peter for sign off and get the work underway”. In a further email on 31 May 2012, the builders provided a drawing for “the task order to permanently replace blockwall (sic)”, noting it had also been sent to Mr Dennis for his approval.
[51] In the same month, MWH had preliminary repair scopes prepared for the buildings, and these were provided to Moorhouse in September 2012. The repair costs at that stage were estimated at $221,164 for what was described as 33 – 39 Moorhouse Avenue and $71,537 for what was described as 41 – 43 Moorhouse Avenue. MWH advised Moorhouse that the scopes were subject to change once the DEEs were received from Structex.
[52] Structex’s DEE report for 43 Moorhouse Avenue was prepared in September 2012 but was not provided to MWH until March 2013. The DEE for 43 Moorhouse Avenue stated:
The damage is minor in nature and may not be the result of earthquake actions, particularly in the case of the spalled concrete between the two buildings.
It recommended repairs, including repair of concrete cracking by epoxy injection.
[53] At a meeting of the parties, including Moorhouse and MWH, on 7 March 2013, it was agreed Structex would complete a DEE for 33 – 41 Moorhouse Avenue, with pricing by Naylor Love. For 43 Moorhouse Avenue, it was agreed that MWH would
have Naylor Love price the repairs as the damage was relatively minor and no structural design was required.
[54] However, at the end of March 2013, Moorhouse removed itself from the MWH programme entirely. Mr Dennis said he was concerned that the MWH reports were not detailed and were vague on repair methodology with no input from any engineer. Vero’s representatives understood the owners were, among other things, dissatisfied with the way their claims were being progressed, including delays in getting a full scope of repair, and dissatisfied with Vero’s view that claims preparation costs should fall within the sum insured.
[55] At that stage, Moorhouse and the related property owners had already organised a geotechnical assessment by Geoconsult for the various insured properties, which Vero had agreed to. That report advised that the foundations of the Hazeldean properties were considered unsuitable for the ground conditions, and deep pile foundations should be installed if the buildings were to be replaced. In early 2013, Vero engaged its own geotechnical engineer to understand whether the recommendation was based on earthquake damage suffered at the properties or was unrelated. A dispute arose between the Hazeldean property owners, and subsequently Moorhouse, over whether the policy provided cover for the new foundations that Geoconsult had recommended. This, too, appears to have contributed to Moorhouse’s decision to remove itself from the MWH programme.
[56] Vero advised, through Cunningham Lindsey, that removal from the MWH programme meant that if repairs were to proceed, Moorhouse would need to provide Vero with proposals and costs for the repair works before the works could go ahead. From this point, Moorhouse was responsible for providing its own repair scopes and costings which needed to be submitted to Vero for approval prior to repairs commencing.
[57] On around 9 April 2013, the Structex DEE for 33 – 41 Moorhouse Avenue was provided to Vero, although it was dated 4 March 2013 and thus had been prepared before the 7 March 2013 meeting. While the report identified limited damage to the building and foundation, and said the building appeared to have “performed well in
the recent Canterbury earthquakes”, it considered building consent would be required for the repairs, and earthquake strengthening work would be required to obtain consent. On receipt of this DEE, Cunningham Lindsey reported to Vero that a more detailed quantitative DEE would be provided by Structex, which Naylor Love could then price. Vero says Moorhouse never provided that quantitative DEE.
[58] In mid-August 2013, a request was made to Vero to make an interim payment to Moorhouse. Vero made a progress payment of $300,000 in October 2013 in respect of the Moorhouse properties. Throughout this period, Vero says Moorhouse advised that its engineering reports and scoping for the Moorhouse buildings were being progressed, but nothing was provided to Vero, and, from Vero’s perspective, the claims largely came to a standstill.
[59] In June 2014, Moorhouse provided some documentation to Cunningham Lindsey for 43 Moorhouse Avenue, being:
(a)a Structex earthquake remediation scope dated 5 June 2014, which proposed crack repair by epoxy injection;
(b)a costs estimate by Brendan Blackmur for repairs to 43 Moorhouse Avenue which totalled $275,989 plus GST; and
(c)a cost estimate by Brendan Blackmur totalling $238,059 plus GST for external works, including replacement of the carpark and repair of drains.
Nothing was provided in relation to the 33 – 41 Moorhouse Avenue building.
[60] By March 2015, Vero wrote to Moorhouse, noting it had not received a claims submission for 33 – 39 or 41 Moorhouse Avenue. It offered assistance in obtaining damage assessments and repair methodologies. It suggested jointly instructing Structex to provide a formal report on the earthquake damage, following which the parties could work together to obtain scopes of work covered by the policy.
[61] Vero wrote a further letter to Moorhouse’s agent, Mr Paul Simpson, in December 2015, again advising it had not received a claims submission for 33 – 39 or 41 Moorhouse Avenue, and noting the policy requirement to reinstate “with reasonable despatch”. Vero also made an offer to settle the claims based on the repair costs. It received no response to this letter.
[62] By early February 2016, and in the absence of any response from Moorhouse, Vero engaged Morgan Property Services to carry out a complete engineering damage assessment and prepare a repair scope and costing for each of the buildings insured under the Moorhouse policy. Vero advised Moorhouse accordingly. A Vero representative wrote to the owner’s broker on 25 February 2016, advising that the Moorhouse claims could not be settled without “a completed claims assessment in the form of engineering damage assessments, remediation scope and costings”, and noting Moorhouse had not presented this evidence for its claims despite promising Vero this would be forthcoming since 2012.
[63] Vero then appointed Ross Thurlow of Thurlow Consulting Engineers (Thurlow) to provide engineering advice and prepare quantative DEE reports. RPC Construction Ltd (a building contractor) was also engaged to provide scoping for earthquake repairs using Thurlow’s structural repair recommendations. At this time, surveys were produced by a surveying firm to show levels and verticality surveys for each building, along with a topographical report in respect of the carpark. Updated roofing reports and quotes were obtained from Newfield Roofing. In May 2016, following a request from Moorhouse, a further progress payment of $50,000 in respect of claim preparation costs was made.
[64] By August 2016, Thurlow had prepared DEE reports which were provided to Moorhouse. In November 2016, RPC Construction provided tender reports which were based on the Thurlow repair recommendations. These assessed the works involved as costing the following (excluding GST):
(a)33 – 39 Moorhouse Avenue $891,436.18;
(b)41 Moorhouse Avenue $52,544.92;
(c)43 Moorhouse Avenue $51,716.44; and
(d)external hardstanding $394,960.72.
[65] Although these reports were provided to the owners in November 2016, Vero did not receive a response until 5 April 2017 when Moorhouse’s solicitors wrote providing copies of further Structex reports for each property, dated 5 April 2017. They also provided a GHD report dated 27 February 2017 reviewing the Thurlow reports and, for the first time, querying the appropriateness of repair by injection of epoxy resin. The GHD report suggested, instead, complete replacement of cracked concrete block work, brick work and reinforced concrete panels, even for very fine cracking of less than 0.2 mm. One of the criticisms Moorhouse raised with the Thurlow reports is that they said they would achieve a return to the “pre-earthquake condition” of each building, and not to the policy standard, which Moorhouse said required restoration to a “when new” condition.
[66] Vero also notes that around the same time, a Structex report dated 21 November 2017 was prepared for 33 – 41 Moorhouse Avenue, and was submitted to the Christchurch City Council in support of a building consent application by Moorhouse for renovations at 33 Moorhouse Avenue. It stated that:
Despite its predicted earthquake prone nature, the building appears to have performed well in the recent Canterbury earthquakes. The damage observed indicates little to no out-of-plane damage to the brick infills or to the warehouse columns. There is no evidence of excessive deflections of the warehouse frames in-plane.
This report was not provided to Vero at the time.
[67]On 21 December 2017, these proceedings were issued.
[68] On 23 May 2018, and as directed at a case management conference, Vero made a further payment of $790,335.19 to Moorhouse in respect of 33 – 41 Moorhouse Avenue, 43 Moorhouse Avenue and 90 Hazeldean Road. The payment was Vero’s assessment of what was required to pay indemnity value for these buildings under the policy.
[69] Following the issue of proceedings, Vero instructed another engineering firm, Batchelar McDougall Consulting (BMC) to prepare fresh engineering reports. Vero says it did this to bring a “fresh perspective” and hopefully break the impasse between the parties. Those reports were provided to Vero in early July 2018 and were consistent with the advice already provided by Thurlow.
[70] Warren Batchelar of BMC led the preparation of these reports. He also participated in expert conferral in December 2018, along with his colleague, Mr Hobbs, and with Moorhouse’s engineers; Mr Toulmin from GHD and Mr Walker from Structex. However, unfortunately, due to serious health issues, Mr Batchelar had to withdraw from involvement in the proceedings. It was for that reason Vero instructed Dr Nicholas Brooke as its structural engineering expert.
[71] While Moorhouse was critical of Vero for not calling someone from BMC to give evidence, given they were involved in the expert conferral process, I do not consider that criticism is warranted. Dr Brooke was clearly familiar with, and endorsed the substance of, the BMC reports and was able to be questioned on the merits of the BMC repair scope.
[72] In late 2018, cost estimates undertaken by Brendan Blackmur were provided to Vero based on the Structex 5 April 2017 repair scopes. These totalled approximately
$9,200,000 for the repairs to the building, plus $264,554 to reinstate the hardstand area outside the buildings. This was a quantum leap from earlier costings and far exceeded the total sum insured.
[73] In April 2019, Moorhouse replaced the two masonry infill panels at the northern end of the east wall of 41 Moorhouse Avenue with lightweight timber panels. This materially increased that building’s seismic strength when compared to New Building Standard (NBS), and it is now assessed by Structex to achieve at least 67 per cent NBS.
[74] In the same month, the Christchurch City Council placed the buildings at 33 – 41 Moorhouse Avenue on the Earthquake Prone Buildings Register, and Moorhouse was given a deadline of 10 October 2026 to complete strengthening of 33, 35 and
39 Moorhouse Avenue and a deadline of 10 April 2034 to strengthen 37 and 41 Moorhouse Avenue.
[75] On 8 August 2019, the Christchurch City Council issued the first stage of a staged building consent for works to 33 – 41 Moorhouse Avenue. The works concerned alterations and change of use to the building including structural strengthening to 89 per cent NBS and a fire upgrade. Stage 2 of that consent issued on 18 June 2020.
[76] While this work continues and indicates that Moorhouse’s proposed repair scope would never, realistically, be undertaken, the repair scope remains, at least in Moorhouse’s view, relevant to the calculation of indemnity value. Accordingly, the first issue to resolve is which repair scope will meet the policy standard.
What does the policy standard require?
[77] The dispute between the parties over what repairs are required rests primarily on whether the use of epoxy resin to repair cracking in concrete will repair the property to the policy standard, being to a condition substantially the same as, but not better or more extensive than its condition when new.
[78] The terms “when new” or “as new”, as used in insurance policies, have been the subject of a number of judgments relating to the CES.6 However, as Vero says, those terms on their own impose a potentially more exacting standard than the term “substantially when new”, which applies in the present case.
[79] I accept the policy standard does not require the insurer to restore the damaged portions of the building to exactly the same condition they were in when new. The word “substantially” does not mean “exactly” or “completely”. Rather, as the Concise Oxford English Dictionary says, “substantially” means “to a great or significant extent, for the most part, essentially”.7 Whata J, in East v Medical Assurance Society,
6 East v Medical Assurance Society [2014] NZHC 3399; Parkin v Vero Insurance New Zealand Ltd [2015] NZHC 1675; and Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd [2019] NZHC 277.
7 Concise Oxford English Dictionary 11th ed. Oxford University Press, 2004.
described a similar policy wording for the standard of repair as “an approximate standard”.8 In the same vein, Davidson J held in Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd, that the “substantially when new” standard did not mean replication of every element when the building was new.9
[80] I am satisfied the policy standard of repairing so that it is substantially the same as when new does not require the building to be reinstated exactly as it was when new, but to ensure that it is, in large part, or in essence, restored to that standard. It affords a modest degree of leeway to the insurer as to how reinstatement is to be achieved.
[81] Furthermore, guidance can be taken from cases regarding the residential “when new” standard as to how that standard should be achieved. The standard is a temporal one relating to the condition of the building when it was first built, and repairs are not required to bring damaged portions of the building up to modern standards except where that is required by legislation or by-laws.10
[82] The “when new” standard does not require exact replication of the original; modern materials and techniques may be used.11 The standard of repair required is to render the fact of earthquake damage immaterial.12 When deciding what standard of remediation is required by the policy, regard must also be had to the purpose of the damaged component. Where an item has a functional purpose only, then so long as the repair or replacement restores that functional purpose to a “when new” condition, the obligations under the policy will be met. Where the component also has an aesthetic purpose, the remediation strategy must restore the former aesthetic to a “when new” quality.13
8 Above n 6, at [104].
9 At [81].
10 Fitzgerald v IAG New Zealand Ltd [2018] NZHC 3447 at [28]–[29] and [70].
11 Fitzgerald at [28].
12 Parkin v Vero Insurance New Zealand Ltd, above n 5, at [117].
13 At [120]–[121].
Will repairs by epoxy resin injection repair concrete elements to the policy standard?
Evidence for Moorhouse
[83] The repair strategy advocated for by Moorhouse was prepared by Mr Adam Walker, when he was a director and senior structural engineer at Structex. Mr Walker’s repair schemes have been independently examined by Ms Jan Stanway, a principal structural engineer at WSP New Zealand.
[84] Once this litigation commenced, Structex rejected epoxy repair as suitable for any repairs to these buildings. However, shortly before the hearing, Moorhouse modified its stance and confirmed that Mr Walker and Ms Stanway would accept epoxy repairs to some of the pre-cast wall panels in the 43 Moorhouse Avenue building but not to the floors. Given the particular structure of the 33 – 41 Moorhouse Avenue building, and the concerns they had about how it had performed during the earthquake, they maintained their position that epoxy repairs would not repair that building to the policy standard.
[85] Mr Walker was first engaged by Moorhouse in 2012 to provide advice on repairs for the building. He acknowledges he prepared a qualitative DEE report dated 4 September 2012 for 43 Moorhouse Avenue which contemplated some epoxy repair, and a DEE report dated 4 March 2013 for 33 – 41 Moorhouse Avenue which also contemplated epoxy resin injection of cracks to block work “where possible” and injection of cracks to the concrete frame. However, he now says that these recommendations were simply to achieve a functional state. They were not prepared “with a view to an insurance entitlement or detailed repair”.
[86] Moorhouse also says that the parties were still debating policy entitlements when Mr Walker later prepared a repair scope on 17 August 2014 for 33 – 41 Moorhouse Avenue, which contemplated epoxy repair to beams and columns, and one on 10 July 2015 for the building at 43 Moorhouse Avenue which proposed an epoxy repair to the suspended floor slab. Both reports were said to be based on “the insurance policy response”.
[87] However, Moorhouse says that once Mr Toulmin, of GHD, was instructed by Moorhouse to review the engineering reports prepared by Vero’s then engineers, Thurlow, he questioned the appropriateness of the proposed epoxy repairs. In his report dated 27 February 2017, he said:
In general, [epoxy] resin injection has been specified for repairs to cracked concrete. The process of repair of concrete using resin injection is not prescribed within the Building Code or accompanying compliance documents. There is also only limited technical data or testing of cracked concrete repaired using resin injection. On this basis we do not consider that resin injection is an appropriate repair for structural elements to meet a substantially the same as when new condition.
This caused Mr Walker to reassess his recommendation on the use of epoxy, and Moorhouse says that Mr Walker’s subsequent report, dated 5 April 2017, properly focused on the policy standard of reinstatement to be achieved.
[88] To a large extent, Mr Walker relies on the evidence of Ms Stanway to say that epoxy injection will not restore the buildings to the policy standard and, as a consequence, replacement of the cracked components of the building is required. Those works will, in turn, impact on the foundation loads and will require a wider foundation to be installed in the areas where walls and column beams are to be replaced. This is because the new columns and beams will be heavier than the existing, meaning the requirement under s 133AT of the Building Act 2004 (which applies to these buildings as they are subject to an Earthquake-Prone Building notice), to leave the building no worse than existing, will not be met. In any event, the requirement to have starter bars connecting the new walls and columns to the foundations would require new foundations to be formed regardless of any load changes. These works will, in turn, mean the floor slab will need to be replaced as the slab will need to be demolished in multiple areas where foundation pads are to be widened. Demolition of the slab is also said to be required to level the areas where the floor slopes exceed 1:200 (being the MBIE guidance for maximum floor slopes in residential homes) and to properly repair the cracks in the floor which have been caused, or exacerbated by the earthquakes.
[89] Ms Stanway’s evidence was critical to Mr Walker’s assumption that epoxy repairs would not meet the policy standard. Ms Stanway is a Principal Structural
Engineer at WSP. She specialises in seismic design and assessment of buildings and in the seismic performance of non-structural elements of buildings. She is the co-author of a proposed MBIE Guideline document on low damage seismic design. She has been involved in the assessment of damage, and the design of repairs, for numerous buildings following the Christchurch and Wellington earthquakes. This includes assessing earthquake damage to port infrastructure in Wellington and to major buildings owned by Christchurch City Council.
[90] Ms Stanway explains she was asked to “[c]onsider the body of professional opinion concerning use of epoxy and the repair of earthquake damaged buildings”, and “[a]dvise whether epoxy would restore the functional purpose of the earthquake damaged structural components”. At the core of her evidence is a review of literature on the use and limitations of epoxy injection to repair damaged concrete elements. She considered the literature reviewed by Vero’s expert, Dr Brooke, as well as further literature which she sets out in her evidence.
[91] She begins by pointing out that cracks in concrete may reduce the strength, stiffness, fire resistance and durability of structural elements. She explains that the term “stiffness” refers to the ability of a building to resist deformation caused by forces being imposed on it. When concrete is cracked during earthquake shaking, this can lead to a reduction in the stiffness of the cracked element and thus, to the building as a whole. A reduction in stiffness means the building would move further during subsequent earthquake events than it would have prior to the earthquake. It is a separate concept from strength, which is the ability of the element to resist forces exerted on it as a result of loads, including the weight of the building itself and external loads caused by factors such as wind, snow and earthquake shaking.
[92] Ms Stanway takes issue with Dr Brooke’s view that “[s]tructural repairs can largely be achieved by epoxy injection of cracks in concrete and filled concrete masonry elements”. Her review of the relevant literature leads her to reach the following relevant conclusions:
(a)Epoxy injection will not restore the stiffness of the building to its condition before the earthquake damage and, following epoxy injection
of cracks, one could still expect around a 20 per cent reduction in stiffness of the concrete components. This results from an inability to practically inject all cracks, to access internal cracks, and to access and fully restore the bond of the concrete to the reinforcement where that has been lost.
(b)While the residual loss of stiffness is unlikely to significantly affect its structural performance in extreme infrequent seismic events, it would result in larger displacements and greater damage in smaller events than would have occurred before the earthquake damage.
(c)Steel reinforcement in cracked concrete elements may be damaged as a result of it yielding in the earthquakes. Reinforcing bars that have yielded have had some of the plastic strain capacity consumed and so it is not available for future lateral resistance. The reinforcing bars are also likely to have hardened due to a process called “strain hardening”, whereby the reinforcement becomes harder through plastic deformation which may occur during earthquake shaking. This can eventually lead to the bars fracturing due to low cycle fatigue.
(d)The type of reinforcement generally used in the construction of 33 – 41 Moorhouse Avenue, being smooth, round bars rather than deformed bars (which are steel bars with deformations or ribbing on the surface), is more susceptible to a reduction in plastic strain capacity, or strain ageing, as a result of deformation during an earthquake.
(e)Injected epoxy will lose strength and stiffness gains when subjected to temperatures in excess of 100°C. At 150°C, the epoxy adhesive tends to become brittle.
(f)If crack repair is delayed then, depending on environmental conditions, corrosion of reinforcement may occur where the concrete cracks reach or intersect the reinforcement. Given the time which has elapsed since
the CES, Ms Stanway expects corrosion of reinforcement to have occurred where the cracks intersect the reinforcement.
(g)Over time, cracks become filled with debris and algae which may be impossible to remove. This contamination reduces the ability of the epoxy to adhere to the concrete, thus reducing its effectiveness. While guidance documents issued by the American Concrete Institute (ACI) on structural crack repairs of concrete using epoxy14 describe the general procedures for crack injection and note that the cracks should be cleaned to the extent that is possible and practical, they also note that contaminants in the crack will prevent epoxy penetration and bonding and reduce the effectiveness of repairs. These practical limitations on achieving a complete repair need to be taken into account.
(h)Finally, she points to a report produced by the Concrete Society of England which undertakes a review of the rehabilitation of previously repaired concrete structures using various repair techniques, including epoxy injection.15 She says only 25 per cent of the repairs and interventions were judged to have been successful at 26 to 50 years following the repair. Of the 75 per cent deemed unsuccessful, 40 per cent exhibited signs of failure within five years of application.
[93] Having provided this review of what the literature says about epoxy repairs, Ms Stanway goes on to explain why she considers the proposed Structex restoration scheme would properly restore the functional purpose of the cracked concrete elements while the BMC repair scheme, which Dr Brooke supports, would not. Her reasons are as follows:
(a)She says there is a practical limit to the minimum width of cracks that can be effectively injected with epoxy. The axial load has closed the
14 ACI Committee 503 Use of Epoxy Compounds with Concrete (503R-93 Reapproved 2008, American Concrete Institute, Detroit); and ACI Committee E706 Field Guide to Concrete Repair Application Procedures: Structural Crack Repair by Epoxy Injection (ACI RAP Bulletin 1 Reapproved 2009, Detroit).
15 John Broomfield and others Technical Report No. 69 – Repair of concrete structures with reference to BS EN 1504 (The Concrete Society, Camberley, 2009).
cracks in the concrete columns and makes effective penetration of epoxy resin into the full depth of those cracks impossible.
(b)When epoxy is used in concrete-filled masonry block walls, there is no guarantee that all cracks in the concrete wall will align with the cracks in the masonry shell. In addition, the outcome would be affected by factors such as whether the concrete infill has detached from masonry as a result of shrinkage of the concrete core. If it has shrunk, leaving a gap between the masonry shell and the concrete core, this would cause the epoxy injection to flow into the resulting void, using substantially more product than expected, not necessarily filling the crack in the concrete core, and potentially causing further damage.
(c)Where cracks occur in the concrete core that do not align with cracks in the mortar and shell, the cracks in the internal concrete would not be accessible to inject with epoxy, and this would affect the stiffness of the masonry block wall, and consequently the stiffness of the building structure.
(d)The concrete columns and beams which form the building framework are constructed with plain round reinforcement bars, and these are susceptible to loss of bond during seismic shaking. Deformed reinforcement, which is used in modern construction, provides a higher bond resistance than plain round reinforcement by providing an interlock between the steel and the concrete. If there has been a loss of bond between the plain round reinforcement and the concrete in the columns, this will affect the future performance of the columns. Research shows that the inability to restore the bond between the reinforcement and concrete is a key reason why epoxy injection does not fully restore the stiffness of the cracked elements and is the primary reason for rejecting epoxy injection as a means to restore the concrete columns in the 33 – 41 Moorhouse Avenue buildings.
(e)In this building there are concrete columns which have horizontal cracks that are more closely spaced at the bottom of the columns. This is indicative of transverse (east-west) flexural response of the concrete columns during earthquake shaking. Applying a force at the top of an open double height frame such as those which exist at 33 and 35 Moorhouse Avenue will cause the structure to deform more than if the same force was applied to a single-storey, short, squat solid wall. Because epoxy injection will not, in Ms Stanway’s view, restore the full stiffness of the concrete columns, the building framework will suffer greater deformation in future earthquakes and so there would be a greater risk of damage to the brittle elements of the building such as cavity brick walls, plasterboard walls and ceilings and fire rated plasterboard walls and ceiling linings.
The claim for an order for an enquiry into damages
[247] It follows from my various findings that I also do not consider Vero has materially breached the policy, and there is no basis for an inquiry into damages as is sought by Moorhouse.
Liability to pay claims preparation costs and professional fees
[248] Moorhouse seeks an order that Vero is liable to pay the claims preparation costs and professional fees due under the policy. There is no utility in making such an order. Vero acknowledges the policy obligation. What is disputed is whether the sum claimed for is covered by the policy. That is yet to be determined.
[249] In order to advance the dispute over the quantum of costs claimed, Moorhouse seeks that the Court make the following direction:
…that the parties consult with a view to agreeing an independent expert to assess whether claimed claims preparation costs and professional fees fall within the Policy entitlement and their reasonableness.
[250] Clearly that would be a sensible course of action. However, such a direction would be of limited efficacy if the parties cannot agree on an appropriate independent expert. In my view, in the absence of agreement as to the appropriate course of action, it should be left to the parties to decide whether they:
(a)continue negotiations on this issue between themselves;
(b)appoint an independent expert to determine the issue;
(c)submit the issue to a formal arbitration process; or
(d)seek a determination from the courts.
Accordingly, I decline to make such direction.
Order reserving leave
[251] Finally, Moorhouse seeks an order reserving leave to the parties generally concerning implementation of the above declarations and orders. Given I have rejected the relief Moorhouse has sought, this relief is not strictly relevant. However, I anticipate there may be residual issues arising as Vero’s scope of works is refined in light of concessions made during the hearing or as further investigation is undertaken
of aspects of the building not yet inspected. I reserve leave to the parties to revert to the Court on those issues alone.
Result
[252] The plaintiff’s claim is dismissed. Moorhouse’s entitlement to indemnity value is to be calculated in accordance with the policy wording and based on Vero’s scope of works and repair costs estimates as modified by counsel and expert witnesses in the course of the hearing.
Costs
[253] Vero has been successful in its defence of the claim. Costs should follow the event. In the usual course this would be 2B costs plus disbursements.
[254] If the parties cannot agree on costs, I reserve leave to the parties to have costs determined by the Court. In those circumstances I direct:
(a)any application for costs is to be made within 20 working days of the date of issue of this judgment;
(b)any response to that application is to be filed and served within a further 10 working days;
(c)any reply is to be filed and served within a further five working days; and
(d)costs will be determined on the papers unless I need to hear from the parties.
Solicitors:
Rhodes & Co., Christchurch Fee Langstone, Auckland
Copy To:
Jane F Anderson KC, Barrister, Auckland
ADDENDUM
Appearance Dates of Counsel
Dates that trial was heard on:
18-20, 22, 27-29 July, 1-3 August and 3-4 October 2022
Moorhouse Commercial Park Limited
S P Rennie All dates except 3 August.
J E Bayley All dates except 3-4 October.
S A Foss All dates from 19 July.
F H Scrase 18 July only.
Vero Insurance New Zealand Limited
J F Anderson QC 18, 19 and 20 July.
C M Brick All dates.
A R Cornwell All dates except 3 August and 3-4 October.
2
4
1