Pearce v Tower Insurance - [2014] NZHC 2849

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-409-001732 [2014] NZHC 2849

BETWEEN
EILEEN MARGARET PEARCE

Plaintiff

AND

TOWER INSURANCE Defendant

Hearing: 12 November 2014

Appearances:

GDR Shand for the Plaintiff
M C Harris and O L Ostrovsky for the Defendant

Judgment:

17 November 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 17 November 2014 at 11.00 am
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

PEARCE v TOWER INSURANCE [2014] NZHC 2849 [17 November 2014]

Introduction

[1] The defendant, Tower Insurance Ltd (“Tower”), has filed an interlocutory

application. It seeks orders that:

(a) a damage assessment report prepared by Earthquake Services Ltd dated 30 July 2013 be ruled inadmissible insofar as it purports to express opinions as to the nature and extent of the earthquake damage and building work required to reinstate a property owned by the plaintiff, Ms Pearce;

(b)an undated repair and rebuild cost prepared by a Mr Stephen Betts annexed to the statement of claim be ruled inadmissible;

(c) an engineering report prepared by a Mr Pavol Csiba be ruled inadmissible;

(d)Ms Pearce be debarred from relying on any report or opinion proffered by Messrs Betts and/or Csiba; and

(e) the costs of and incidental to this application be paid by a company called Claims Resolution Services Ltd, or alternatively, by the plaintiff.

[2] The application is opposed by Ms Pearce. In her notice of opposition, she asserted that each of the challenged reports is fair and accurate, that the Court is likely to receive substantial help from them, and that their admissibility depends upon the expertise of each witness, and not his or her independence.

[3] Affidavits were filed. A Mr Ashe filed an affidavit on behalf of Tower, and Ms Pearce, Mr Betts, Mr Csiba and a Mr Bryan Staples filed affidavits in support of Ms Pearce’s notice of opposition. An affidavit in reply was filed by Mr Ashe.

[4] The application spawned two further applications:

(a) First, Mr Shand, for Ms Pearce, sought that I should recuse myself.

Two affidavits were filed in support of this request, one from a Mr Child and the other from a Mr Morriss. Both are lawyers employed by Mr Shand. They regularly appear on behalf of plaintiffs in case management conferences in the earthquake list.

(b) Secondly, Mr Harris, for Tower, applied for leave to cross-examine

Mr Betts and Mr Staples.

[5] The applications were called before me for hearing on 12 November 2014. After hearing from counsel, I advised the parties that I was recusing myself and that my reasons for that decision would follow. I now set out those reasons. Before doing so, however, I summarise the factual background.

Background

[6] Ms Pearce owns a 110 square metre house with an attached sun room located in Palmers Road, New Brighton. The house is a single-storey, timber-framed dwelling with concrete block and other exterior cladding. It has a concrete tile roof and it sits…

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 Pearce v Tower Insurance

Details

AGLC: Pearce v Tower Insurance [2014] NZHC 2849
Case: [2014] NZHC 2849
Decision Date: 17 November 2014

CaseChat Overview and Summary

Eileen Margaret Pearce commenced proceedings against Tower Insurance Ltd in the Christchurch Registry of the High Court of New Zealand. Ms Pearce owns a house which was damaged by earthquakes in 2010 and 2011. Tower insured the property for its full replacement value and Ms Pearce made a claim against it. Tower, however, did not agree with her assessment of the damage and, as a consequence, she commenced proceedings against it. Tower filed an interlocutory application seeking orders that three reports prepared by experts on behalf of Ms Pearce be ruled inadmissible. It also sought orders barring her from relying on the reports or on the experts. Tower’s application was opposed by Ms Pearce and affidavits were filed. The application was heard on 12 November 2014 and, after hearing from counsel, the Court was recused and the matter was adjourned to 20 February 2015. The application for recusal was made by counsel for Ms Pearce. It was based on a number of assertions. The Court was satisfied that none of the assertions led to a reasonable apprehension that it might not bring an impartial mind to the resolution of the issues before it. There was, however, an issue as to whether the Court had formed a view on two issues which were central to the interlocutory application. The Court accepted that a fair-minded lay observer might reasonably conclude that it had formed a view on those issues and that there was a possibility that it might not bring an impartial mind to their resolution. Accordingly, the Court was recused.

Orders