Moulin v Earthquake Commission

[2020] NZHC 490

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-772

[2020] NZHC 490

BETWEEN

CAROL MOULIN

Plaintiff

AND

THE EARTHQUAKE COMMISSION

First Defendant

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

C Moulin (Plaintiff in person)

N L Walker and E M Light for First Defendant
E J Walton and B J Entwistle for Second Defendant

Judgment:

12 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application for wasted costs)

This judgment was delivered by me on 12 March 2020 at 2.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 12 March 2020

MOULIN v THE EARTHQUAKE COMMISSION [2020] NZHC 490 [12 March 2020]

[1]    On 14 February 2020, Osborne J transferred this proceeding to the Canterbury Earthquakes Insurance Tribunal (“the Tribunal”).1 The second defendant, Southern Response Earthquake Services Ltd (“Southern Response”) had consented to the application but sought that its outstanding application for wasted costs it had bought on 17 July 2019 be determined. Transfer was ordered on the basis that the Court would now determine that application.

[2]    The wasted costs application was brought as Southern Response considered it had as a result of a history of failures by the plaintiff to comply with timetabling orders, incurred wasted costs.

[3]    The plaintiff, Ms Moulin, has filed a memorandum in response. That memorandum, while critical of Southern Response’s approach to the litigation, does not deny (and realistically it could not deny) that the plaintiff had failed to comply with timetables on a number of occasions.

[4]    In a Minute of 22 November 2018, Whata J dealing with timetabling, referred to Southern Response at that time seeking an unless order in respect of the plaintiff’s non-compliance with timetables. At that time, his Honour considered that an unless order would be disproportionate but said:2

Instead, as I made clear to Ms Moulin in the conference, I am going to provide fresh timetabling, non-compliance with which by her will sound in a costs order against her.

[5]Whata J recorded at the end of his Minute:3

… Ms Moulin should be under no illusion, however, further adjournments for the reasons stated by her previously will likely sound in costs against her.

[6]    It is clear, and it is not disputed by Southern Response, that the earthquakes and dealing with their aftermath has been very stressful for Ms Moulin. The Court sought to recognise that in a Minute of 15 August 2019 directing that the claim be

1      Moulin v Earthquake Commission CIV-2016-409-773, 14 February 2020.

2      Moulin v Earthquake Commission CIV-2016-409-772, 22 November 2018 at [2].

3 At [4].

stayed for a period of six months to provide some respite to the plaintiff from the stress of litigation.4

[7]    At that time, the request for a wasted costs order was repeated and in my Minute of 15 August 2019 I said I was not willing to make a wasted costs order at that time.

[8]    Even in November 2018, Whata J described there as having been inordinate delay in the claim progressing. Whatever Ms Moulin feels about Southern Response, the fact remains that she has not on some four occasions complied with directions made by the Court covering substantially the same ground.

[9]    Complying with directions that placed obligations on Ms Moulin was her responsibility. If her ability to do so was frustrated by issues she had with legal advisers, that is not the responsibility of Southern Response.

[10]   The fact is that Southern Response had to file unnecessary memoranda in respect of timetabling conferences and in respect of Ms Moulin’s non-compliance. They are steps Southern Response should not have had to take.5

A wasted cost award is to compensate a party who has incurred costs that are wasted and for which any ultimate cost award will not compensate. It recognises that the issues will need to be revisited and some steps repeated. Hence the Judge’s reference to costs “thrown away”.

[11]   I do not consider claims about what happened in the Greater Canterbury Claims Resolution Scheme (“GCCRS”) as relevant. It is not this Court’s role to grant costs in respect of conduct in the GCCRS. Southern Response claims costs in respect of wasted steps in this Court. While I recognise the strength of feeling in Ms Moulin’s memorandum, I am left with a history of non-compliance with timetabling directions.

[12]   The wasted costs application relates to what were memoranda in relation to timetabling that should not have been required. That is, memoranda to address again and again directions as a result of Ms Moulin not meeting timetabling directions.

4      Moulin v Earthquake Commission CIV-2016-409-772, 15 August 2019.

5      EBR Holdings Ltd (in liq) v Van Duyn [2018] NZHC 1065.

Southern Response would not have had to file those memoranda if Ms Moulin had complied with her obligations and I consider that the time spent in respect of those memoranda was wasted.

[13]   I find Southern Response is entitled to a wasted costs award in the sum sought, that is $3,345.

[14]   I direct however that the costs award is not to be enforced until such time as Ms Moulin resolves her insurance entitlements against both defendants. Ms Moulin has referred to a lack of resources in her memoranda. Southern Response has the benefit of a wasted costs order. The wasted costs order will need to be paid or taken into account when Ms Moulin’s claim is either settled or resolved through the Tribunal.

Associate Judge Lester

Solicitors:

Russell McVeagh, Wellington Wynn Williams, Christchurch

Copy to:
Ms C Moulin, Christchurch