Proclaims Management Limited v Bately - [2024] NZHC 4003

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-000503 [2024] NZHC 4003

BETWEEN
PROCLAIMS MANAGEMENT LIMITED

Appellant

AND

SARAH JANE BATELY and JOSEPH LEONARDO COX

Respondents

Hearing: On the papers

Appearances:

H D J Holderness for Appellant P J Woods for Respondents

Judgment:

20 December 2024

JUDGMENT OF PRESTON J

(Costs)

This judgment was delivered by me on 20 December 2024 at pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date……………

PROCLAIMS MANAGEMENT LIMITED v BATELY [2024] NZHC 4003 [20 December 2024]

[1] By a judgment dated 11 October 2024 (the October judgment), 1 I essentially dismissed the appeal of Proclaims Management Ltd (Proclaims) against a judgment of Judge Tuohy of 21 August 2023, which dismissed part of Proclaims claim against Ms Bately and Mr Cox (the respondents).2

[2]In respect of costs, I concluded my judgment as follows:

[194]There is no reason why costs should not follow the event.

[195] Save for the modest success in respect of the quantum meruit claim, Proclaims’ appeal has failed. The respondents are entitled to costs on a 2B basis and disbursements as fixed by the Registrar. That will be the order of the Court if no costs memorandum is filed within five working days of not more than three pages in length.

[196] The amount payable to Proclaims under the quantum meruit claim may be deducted form the costs judgment by way of set-off.

[3] Despite the above, Proclaims asserts it achieved in substance equal success alongside the respondents.

[4]For the reasons that I now explain, I do not accept that submission.

Summary of Proclaims’ proceeding and appeal

[5] As set out in the October judgment, Proclaims is an insurance advisory service that assists clients to recover the cost of repairing damage to their homes caused by the Canterbury earthquakes. The respondents engaged Proclaims in June 2018 to provide assistance with their claim against the Earthquake Commission (EQC).

[6] Proclaims, before Judge Tuohy, succeeded in its claim for commission (the “success fee”) on what is known as the under-cap amount, that is the balance of EQC’s statutory liability in respect of earthquake damage to the respondents’ home which were available for them. However, Judge Tuohy dismissed Proclaims’ claim for commission on the “over-cap amount” that may have been available to the respondents from the Government’s ex gratia On-Sold Support Package Programme (OSP).

1 Proclaims Management Ltd v Bately [2024] NZHC 2965.
2 Proclaims & Ors v Bately & Cox [2023] NZDC 12924.

[7] Proclaims also brought in the District Court an alternative action in quantum meruit. Judge Tuohy held that Proclaims had not established a valid claim in quantum meruit and, even if it had, the amount it could have claimed based on the evidence would be no more than $500.

The outcome of the appeal

[8] I dismissed Proclaims’ various arguments that it was entitled to recover commission or compensation in quantum meruit in relation to the…

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 Proclaims Management Limited v Bately

Details

AGLC: Proclaims Management Limited v Bately [2024] NZHC 4003
Case: [2024] NZHC 4003
Decision Date: 20 December 2024

CaseChat Overview and Summary

Proclaims Management Limited (Proclaims) appealed a decision by Judge Tuohy of the District Court which had dismissed part of its claim against Sarah Jane Bately and Joseph Leonardo Cox (the respondents). The appeal was largely unsuccessful, with Proclaims achieving only modest success on its quantum meruit claim. Proclaims sought costs on the basis that it achieved equal success to the respondents. The respondents sought costs on a scale basis for the steps taken to 2 February 2024, the date of the Calderbank offer, and indemnity costs thereafter. They also sought to exclude GST from the scale costs and interest on the quantum meruit award. The central issue was whether Proclaims was entitled to costs given its limited success on the appeal. Proclaims argued that it was successful in establishing its quantum meruit claim and that costs should follow the event. The Court rejected this, finding that Proclaims had pursued an argument that lacked merit by assessing the quantum meruit claim on a commission basis rather than the reasonable value of services provided. The Court also noted that Proclaims failed to accept the Calderbank offer which would have resulted in a better outcome for it. Accordingly, the Court declined to award Proclaims any costs and ordered the respondents to receive costs on a scale basis up to 2 February 2024 and indemnity costs thereafter. The respondents were also awarded interest-free costs as GST is not part of a scale costs award.

The final orders were that Proclaims was not entitled to costs. The respondents were awarded costs of $22,944 on a scale basis up to 2 February 2024 and indemnity costs thereafter, excluding GST. Proclaims was not awarded interest on the $500 quantum meruit sum.

Orders