Morgan v Sovereign Assurance Co Ltd - [2013] NZHC 1195

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000957 [2013] NZHC 1195

BETWEEN KATHRYN ANN MORGAN Plaintiff

ANDSOVEREIGN ASSURANCE CO LTD Defendant

Hearing: 22 May 2013 (by telephone)
(Heard at Christchurch)

Appearances: G J Peachey for Applicant/Defendant
A C Beck for Respondent/Plaintiff

Judgment: 23 May 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to venue]

[1] The plaintiff, Ms Morgan, is suing the defendant, Sovereign Assurance Co

Ltd (“Sovereign”) for repudiation of a contract of disability insurance. [2] She filed the proceeding in the Dunedin Registry.
The application

[3] Sovereign applies for an order transferring the proceeding to the Auckland Registry. It says that that should happen because the statement of claim was filed in the wrong Registry in the first place and, in any event, the Auckland Registry would be more convenient to the parties.

[4] Ms Morgan opposes the application. She says that there is justification for the identification of Dunedin as the correct Registry. She says, in any event, that

MORGAN V SOVEREIGN ASSURANCE CO LTD HC DUN CIV-2012-412-000957 [23 May 2013]

Sovereign waived any irregularity as to proper Registry by filing its statement of defence and counterclaim before making this application. Furthermore, she says that Dunedin will be more convenient, by reason of one overwhelming factor. That is that she suffers a disability which renders her unable to live a normal life. She says that she is dependent on others to assist in basic tasks. Although she lives in Queensland, having left Dunedin in 2005, she would be able to live with her parents in Dunedin during a trial. She deposes that without the assistance of her parents, she would not be able to manage her daily life or the other activities necessary to allow her to take part in a hearing.

The issue as to proper Registry

[5] The identification of the proper Registry in which to file a proceeding is contained in r 5.1 High Court Rules.

[6] By r 5.1(a), this proceeding would normally be commenced against Sovereign, as a company with its principal place of business in Auckland, in that Registry.

[7] Alternatively, under r 5.1(2) the proceeding might have been issued, if the place where the cause of action sued on, or a material part of it, arose nearer to where the plaintiff resides, in the Registry of that place.

[8] The implication of the affidavit filed by Ms Morgan in support of her filing the proceeding in Dunedin is that her parents’ place of residence in Dunedin should be treated as Ms Morgan’s place of residence for the purpose of this proceeding. I say “implication” because Ms Morgan, in breach of r 5.1(3), did not state that the cause of action had arisen in Dunedin and that Dunedin is nearer to the place where she resides than to the place where Sovereign is based. On the facts of this case, Ms Morgan could not make a statement of the kind required by r 5.1(3), because she is a resident of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 1195
Decision Date: 23 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Kathryn Ann Morgan, the plaintiff, filed a lawsuit against Sovereign Assurance Co Ltd, the defendant, for repudiation of a contract of disability insurance. The plaintiff filed the proceeding in the Dunedin Registry, but the defendant applied for an order transferring the proceeding to the Auckland Registry, asserting that the Dunedin Registry was incorrect and that the Auckland Registry would be more convenient for the parties. The plaintiff opposed the application, arguing that there was justification for the identification of Dunedin as the correct Registry and that the defendant had waived any irregularity by filing its statement of defence and counterclaim before making this application.

The court considered the issue of the proper Registry for filing the proceeding, which is contained in rule 5.1 of the High Court Rules. The court found that the proceeding should have been filed in the Auckland Registry, as the defendant is based in Auckland, and the plaintiff's residence in Queensland is closer to Auckland than to Dunedin. The court also found that the defendant had waived any irregularity by filing its statement of defence and counterclaim before making this application. Therefore, the application for transfer on the basis of the proper Registry was dismissed.

The court also considered the issue of transfer on the basis of convenience to the parties, as provided in rule 5.1(5) of the High Court Rules. The court found that the overall convenience to the parties, including the physical, financial, and other matters affecting convenience, as well as the overall justice of the case, favoured transferring the proceeding to Dunedin. The court took into account the plaintiff's disabilities and the need for her parents' support during the trial. The defendant had offered to absorb the costs of return air travel for a support person to Auckland and the costs of motel accommodation for the trial, but the court found that it was not reasonable to require the plaintiff to accommodate herself with one parent's support in a motel in Auckland for the duration of the trial.

Therefore, the court dismissed the defendant's application for transfer on both grounds. The defendant was ordered to pay the costs of the application on a 2B basis together with disbursements to be fixed by the Registrar.

Orders