QBE Insurance (International) Ltd v MTEC Consultants Ltd no.2
[2012] NZHC 3329
•11 December 2012
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV 2012-463-469 [2012] NZHC 3329
BETWEEN QBE INSURANCE (INTERNATIONAL) LTD AND VERO LIABILITY INSURANCE LTD
Applicants
ANDMTEC CONSULTANTS LTD First Respondent
ANDROTORUA DISTRICT COUNCIL Second Respondent
ANDPIONEER PROPERTY TRUST LTD Third Respondent
ANDTRENT DANIEL SWEENEY AND MELANIE GWEN THOMPSON Fourth Respondent
ANDGJMCP LTD Fifth Respondent
ANDBAYWIDE CONSTRUCTION LTD Sixth Respondent
ANDCOFFEY GEOTECHNICS (NZ) LTD Seventh Respondent
Hearing: 10 December 2012
Counsel: N A Till QC and J A Thompson for Applicants Appearance on behalf of First Respondent excused S Thodey for Second Respondent
K J Patterson for Third Respondent
V A Whitfield for Fourth Respondent
M Lenihan for Fifth Respondent and Calais Western Ltd Appearances on behalf of Sixth and Seventh Respondents excused Mr and Mrs Grundy, Mr Collins and Ms Vos, and Mr and Mrs Davis (persons served following interim judgment of 31 October 2012), in person
No appearance by others served following interim judgment of 31
October 2012
QBE INSURANCE (INTERNATIONAL) LTD AND VERO LIABILITY INSURANCE LTD V MTEC CONSULTANTS LTD HC ROT CIV 2012-463-469 [11 December 2012]
Judgment: 11 December 2012
JUDGMENT (NO. 2) OF HEATH J
This judgment was delivered by me on 11 December 2012 at 12 noon pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Introduction
[1] QBE Insurance (International) Ltd and Vero Liability Insurance Ltd (the Insurers) are the professional indemnity insurers for a civil engineering company, MTEC Consultants Ltd (MTEC). MTEC provided engineering services to Pioneer Property Trust Ltd (Pioneer), the developer of a residential subdivision, known as “Oakland”, near Ngongotaha. Pioneer and some purchasers of lots in the Oakland subdivision allege that MTEC gave negligent opinions about the suitability of the soil as a foundation for proposed dwellings and that loss has been suffered in consequence. The Insurers have carriage of MTEC’s defence, in a number of proceedings that have been brought against it. At this stage, MTEC denies liability.
[2] On 20 July 2012, the Insurers applied for orders requiring landowners who had not issued proceedings against MTEC to bring such proceedings promptly so that they could determine those parties with whom they could negotiate to resolve all claims.1 The Insurers also applied to consolidate all proceedings currently before the Court and any future claims that might be brought. If granted, the latter order could have had the effect of deferring resolution of any claims against MTEC indefintiely.
[3] The Insurers’ application (the s 9(6) application) is driven by their belief that
MTEC’s lack of financial resources is likely to bring s 9 of the Law Reform Act
1936 (the Act) into play.2 Section 9 is a code, designed to create a charge over the proceeds of a relevant insurance policy and to preserve the moneys for the benefit of those who suffer loss as a result of the event that gives rise to the claim. The Insurers’ seek a declaration that they have “actual notice” of a limited category of claims giving rise to a charge, so that they may treat with those parties and secure a valid discharge for any payments they may make.3
[4] The s 9(6) application came before me on 2 October 2012. I gave an interim judgment on 31 October 2012 in which, after discussing jurisdictional and
discretionary difficulties arising out of the failure to serve the application on all
1 See paras [3] and [25] below.
2 Set out in full at para [16] below.
3 Law Reform Act 1936, s 9(6), set out at para [16] below.
persons within the “Oakland” subdivision who might have been affected by it, I directed service on them. The application was adjourned to await the responses of those who were to be served.4
[5] At the time of the 2 October 2012 hearing, there were actual and potential claims that were known to the Insurers. I described those claimants, in my earlier judgment:5
(a) Actual claims
[13] [As at 2 October 2012], four relevant proceedings had been issued: (a) The first is brought by Mr Sweeney and Ms Thompson.
They are the owners of 66 Western Road, part of Stage 1.
The claim relates to alleged property damage caused by subsidence. MTEC, the [Rotorua District] Council, Pioneer and Baywide Construction Ltd (the builder) have been joined. The Council and Pioneer have made cross claims against MTEC. The current claim is in the vicinity of
$360,000.
(b) In the second, Pioneer has claimed against MTEC in relation to losses it may suffer that arise out of Stages 2–4 of the subdivision. Exclusive of interest and costs, this claim is for
$4,665,345. A fixture date has been allocated. The hearing is due to commence in Hamilton on 13 April 2013.
(c) The third is brought by GJMPC Ltd, the owner of two Stage
1 properties, at 76 and 80 Western Road. This claim is against the Council, Pioneer, MTEC, Baywide and Coffey
Geotechnics NZ Ltd. Damages have not yet been
quantified.
(d) A fourth (filed only the week before the hearing of this application) is brought by Calais Western Ltd, the owner of
82 Western Road, against the Council, MTEC and Pioneer. Damages have not yet been quantified.
(b) Potential claims
[14] The owners of Stage 1 properties at 48, 52 and 54 Western Road have jointly filed an application with the Department of Building and Housing for a determination against the Council on the question whether code compliance certificates were properly issued. They allege that the construction did not meet relevant Building Code requirements. Cracking has been observed in the houses. MTEC is regarded (in that claim) as a party with an interest in the determination.
4 QBE Insurance (International) Ltd v MTEC Consultants Ltd [2012] NZHC 2861 at para [36].
5 Ibid, at paras [13] and [14].
[6] In terms of further directions made on 5 November 2012, the s 9(6) application (and its supporting documentation) were served by post on all landowners on whom I had directed service. Following a telephone conference on
29 November 2012, a further hearing was fixed for 10 December 2012 and all affected landowners were notified of that date.
[7] Following service of the proceedings, four additional claimants came to light. They are: Mr and Mrs Grundy (Lot 18), Mr and Mrs Davis (Lot 21), Mr Collins and Ms Vos (Lot 19) and Mr and Mrs Curtis (Lot 14). In addition, the Rotorua District Council (the Council) has notified a possible claim with regard to steps taken by it to remediate services in the subdivision.
Positions taken at 10 December 2012 hearing
[8] Mr Till QC, for the Insurers, sought a declaration that “for the purposes of s 9 of the Law Reform Act 1936 [the Insurers] have no actual notice of any charge save of those claimants to existing proceedings and potential claimants opposing this application”. Although reference was made to claimants (or potential claimants) opposing the application, in fact there was no opposition to the s 9(6) application, as such. A declaration was not been made following the 2 October 2012 hearing due to my concerns that a number of potentially affected persons had not been served with the application.
[9] Mr Till also pursued the application for consolidation of the actual and potential proceedings.
[10] Counsel for the Council, Pioneer, Mr Sweeney and Ms Thompson (owners of
66 Western Road, part of Stage 1 of the subdivision), GJMPC Ltd (owners of two lots within Stage 1) and Calais Western Limited (the owner of one lot with Stage 1) support the s 9(6) application but oppose (except for the Council) consolidation or stay.
[11] Mr and Mrs Grundy, Mr Collins and Ms Vos, and Mr and Mrs Davis attended the 10 December 2012 hearing. Primarily through Mr Collins (though Mr Grundy
also addressed me), they explained the difficulties that have been caused to them in respect of their particular properties. They informed me of the proceedings in which they had been involved to date and their view that the Council had been obdurate in dealing with them.
[12] I made it clear that I could not comment on what had happened in other proceedings. I also explained the purpose of the declarations and orders sought by the Insurers. I understood them to support the s 9(6) application, on the basis that it could have the desirable effect of advancing their ability to negotiate and to resolve their claims.
[13] Service of the application on remaining landowners has removed the jurisdictional and discretionary concerns that I expressed about making a s 9(6) declaration, in my interim judgment. However, during the course of argument two further issues crystalised:
(a) The first arises out of a dispute about whether the policy put before me is the only insurance policy that could respond to the losses suffered.
(b)The second is that any “valid discharge” for the purposes of s 9(6) could only be received at the time that the payment is made. A declaration could not bind a person who gave notice of a claim after the date of the declaration but before any payment.
The former can be addressed by limiting any declaration to the specific policy in issue, leaving any questions about the relevance of other policies to be litigated separately. The latter can be addressed by qualifying the form of the declaration to make the point clear.
[14] I am now prepared to make a s 9(6) declaration, on the grounds that to do so is in the best interests of all claimants and the Insurers. The Insurers accept unequivocally that the combination of receipt of MTEC’s claim under the policy, their knowledge of circumstances giving rise to a claim and MTEC’s subsequent
notification of those circumstances to the Insurers brings the claims made squarely within s 9(1) of the Act. That is the most favourable position, from the claimants’ point of view. On that basis, the Insurers accept that each of the claimants to whom I have referred,6 have a charge over the insurance moneys by virtue of s 9(1).
[15] Mr Skelton, Claims Manager Professional Risks of QBE deposes that the relevant notification was given on 16 April 2008. That was the date on which MTEC notified the Insurers of a “circumstance that might lead to a claim arising out of the performance of professional services in relation to the Oakland subdivision at Western Road, Ngongotaha”. That is the factual premise on which I consider the s 9(6) application.
Should a s 9(6) declaration be made?
[16] Section 9 of the Act states:
9 Amount of liability to be charge on insurance money payable against that liability
(1) If any person (hereinafter in this Part of this Act referred to as the insured) has, whether before or after the passing of this Act, entered into a contract of insurance by which he is indemnified against liability to pay any damages or compensation, the amount of his liability shall, on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance money that is or may become payable in respect of that liability.
(2) If, on the happening of the event giving rise to any claim for damages or compensation as aforesaid, the insured has died insolvent or is bankrupt or, in the case of a corporation, is being wound up, or if any subsequent bankruptcy or winding up of the insured is deemed to have commenced not later than the happening of that event, the provisions of the last preceding subsection shall apply notwithstanding the insolvency, bankruptcy, or winding up of the insured.
(3) Every charge created by this section shall have priority over all other charges affecting the said insurance money, and where the same insurance money is subject to 2 or more charges by virtue of this Part of this Act those charges shall have priority between themselves in the order of the dates of the events out of which the liability arose, or, if such charges arise out of events happening on the same date, they shall rank equally between themselves.
6 See paras [5] and [7] above.
(4) Every such charge as aforesaid shall be enforceable by way of an action against the insurer in the same way and in the same Court as if the action were an action to recover damages or compensation from the insured; and in respect of any such action and of the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the Court shall have the same powers, as if the action were against the insured:
Provided that, except where the provisions of subsection (2) of this section apply, no such action shall be commenced in any Court except with the leave of that Court.
(5) Such an action may be brought although judgment has been already recovered against the insured for damages or compensation in respect of the same matter.
(6) Any payment made by an insurer under the contract of insurance without actual notice of the existence of any such charge shall to the extent of that payment be a valid discharge to the insurer, notwithstanding anything in this Part of this Act contained.
(7) No insurer shall be liable under this Part of this Act for any sum beyond the limits fixed by the contract of insurance between himself and the insured.
[17] Mr Till argued that, as at 16 April 2008, when MTEC notified circumstances that might give rise to a claim for damages7 the Insurers had no more than constructive notice of the class of persons who might make claims in the future. As time progressed, some of those claims have crystalised into actual or threatened proceedings. They are now claims of which an insurer has “actual notice”, for the purposes of s 9(6). Others, he submitted, have “passed into history”; meaning that they are not taken into account for the purposes of s 9(6). Mr Till defined “constructive notice” as existing when an insurer is aware of certain facts that would
cause a reasonable insurer to consider the claims could be contemplated or made. The threshold at which a “circumstance which could give rise to a claim” exists is low, one based on potentiality or capability.8
[18] The notion of a claim “passing into history” allows for the possibility of a charge in favour of one or more potential claimants dissolving. That takes such
7 See para [15] above and s 9(1) of the Act.
8 Attorney-General v AON New Zealand Ltd HC Wellington CIV 2005-485-1814 (Mallon J) at para [66].
potential claims outside the scope of s 9(6). The question whether a claim or
circumstance has “passed into history” is a factual inquiry.9
[19] Mr Till referred to an affidavit sworn in support of the application by a director of MTEC. Mr Yetsenga deposed as to the circumstances in which the claims came to be made.10 The following circumstances assume significance:
(a) MTEC provided opinions that the land was suitable for residential development in reports dated 27 November 2006 (Stage 1) and 20
July and 17 August 2007 (Stage 2). Before the Stage 2 opinions were issued, Pioneer had begun to sell Stage 1 lots.
(b)MTEC advised its insurers of circumstances giving rise to potential claims on 16 April 2008. Four years and eight months have passed since that notification.
(c) There has been extensive coverage in the news media about the subdivision and the plight of those who have acquired land within it.11
(d)Remediation work has been carried out on Stages 2 and 3 of the development.12
[20] The present position is that the Insurers have actual notice of claims issued by four parties and a number of potential claims that were communicated both before and after service of the Insurers’ application on landowners within the Oakland subdivision.13 That being so, I consider that it can now, legitimately, be said that any other claims have “passed into history”, leaving only those actually brought or
notified falling within the scope of s 9(6) of the Act.
9 FAI General Insurance Co Ltd v Hendry Rae & Court (1993) 7 ANZ Insurance Cases 61-200 (FCWA) at 78,301 (Malcolm CJ). See also FAI General Insurance Co Ltd v McSweeney (1999)
10 ANZ Insurance Cases 61-443 (FCA) at 75,034 (Lindgren J) and Fishwives v FAI General
Insurance Co Ltd (2002) 12 ANZ Insurance Cases 61-515 (CA NSW) at paras 36-38 (Mason P).
10 For a summary of the steps taken to develop the subdivision, see QBE Insurance (International) Ltd v MTEC Consultants Ltd [2012] NZHC 2861 at paras [6]–[12].
11 While Mr Grundy disputed the time from which this media coverage first began, there is no dispute that there has been extensive media interest since, at the latest, some time in 2010.
12 QBE Insurance (International) Ltd v MTEC Consultants Ltd [2012] NZHC 2861, at para [16].
13 QBE Insurance (International) Ltd v MTEC Consultants Ltd [2012] NZHC 2861 at para [13], set out at paras [5] and [7] above.
[21] In my interim judgment, I expressed concerns about the potential effect of an
appeal that has been brought against Lang J’s judgment in Steigrad v BFSL 2007
Ltd.14 That judgment remains reserved. However, having studied Lang J’s judgment more closely, I consider it is most unlikely that anything said in the Court of Appeal’s decision might impact adversely on the approach I intend to take with regard to the declaration sought. I am satisfied that the desirability of dealing promptly with the s 9(6) application outweighs the risks of making a decision before the Court of Appeal’s judgment is released.
[22] As at 16 April 2008, all persons who owned land within the Oakland subdivision were potential claimants entitled to a charge over insurance moneys in respect of the event notified by MTEC to the Insurers on that date.
[23] As at today’s date, some four years and eight months after that notification,
those who have actually pursued claims are: Mr Sweeney and Ms Thompson (66
Western Road), GJMPC Ltd (76 and 80 Western Road), Calais Western Ltd (82
Western Road), owners of Stage 1 properties at 48, 52 and 54 Western Road, Mr and Mrs Grundy (lot 18), Mr and Mrs Davis (lot 21), Mr Collins and Ms Vos (lot 19) and Mr and Mrs Curtis (lot 14). In addition, it is necessary to take into account the Council’s potential claim in relation to recovery of moneys expended to remediate services in the subdivision.15 I am satisfied that each has a charge of the type contemplated by s 9(1).
[24] Since service of the s 9(6) application, no other party has indicated an intention to make a claim. I infer that they do not intend to bring claims against MTEC. On that basis, as at today’s date, the class of relevant claimants is restricted to those to whom I have referred.16 That means that the Insurers can deal with those parties to achieve resolution.
[25] If the insurance moneys were insufficient to meet all liabilities flowing from any negligent act (or omission) on the part of MTEC, s 9(3) of the Act operates to
require damages to be paid on a pro rata basis among all of those entitled to a
14 Steigrad v BFSL 2007 Ltd HC Auckland CIV 2011-404-611, 15 September 2011 (Lang J).
15 Generally, see paras [5] and [7] above.
16 See para [23] above.
charge. Payments made by the Insurers to the identified claimants will constitute a valid discharge of the Insurers’ obligations, as there are no other claims of which the Insurers have actual notice, for the purposes of s 9(6).
[26] Subject to crafting relief in a manner which is limited to the particular policy on which the Insurers have argued the application17 and to those claims of which the Insurers have actual notice as at the date of this judgment,18 the Insurers are entitled to the declaration that they seek.19
Applications for stay and consolidation
[27] The Insurers seek orders consolidating all proceedings, whether or not yet brought, relating to the subdivision in which the liability of MTEC to landowners may be in issue. Because Pioneer’s proceeding against MTEC has been set down for hearing on 13 April 2012, it would be necessary to stay that proceeding until such time as other proceedings reach the same stage. While Mr Till contends that, with robust case management, it should be possible for existing proceedings to be readied for hearing relatively promptly, vacation of the 13 April 2013 date and consolidation of the Pioneer proceeding with all others before the Court necessarily means that Pioneer’s claim could not proceed until the first quarter of 2014, at the earliest.
[28] Jurisdiction to make consolidation and stay orders flows from r 10.12 of the
High Court Rules:
10.12 When order may be made
The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—
(a) that some common question of law or fact arises in both or all of them; or
(b) that the rights to relief claimed therein are in respect of or arise out of—
17 See para [13](a) above.
18 See para [13](b) above.
19 The form of the declaration is set out at para [38](a) below.
(i) the same event; or
(ii) the same transaction; or
(iii) the same event and the same transaction; or
(iv) the same series of events; or
(v) the same series of transactions; or
(vi) the same series of events and the same series of transactions; or
(c) that for some other reason it is desirable to make an order under this rule.
Rule 10.12 applies even though the relief sought in each proceeding is not the same.20
[29] The variety of the orders that can be made under r 10.12 and the wide scope of the discretion to make them were the subject of comment by the Court of Appeal in Regan v Gill.21 It observed that, even where the rule is “in play, a number of options are available to the Court that is asked to exercise the discretion”. The Court might:
[9] ...
(a) consolidate the two proceedings – and then, on such terms as it thinks just; or
(b) order them to be tried at the same time, but without consolidating them; or
(c) order them to be tried one immediately after the other; or
(d) order one of them to be stayed until after the determination of the other; or
(e) do none of the above: it is a discretion.
[30] Chambers J, delivering the judgment of the Court of Appeal, continued:22
[10] It is difficult to conceive of a wider procedural discretion. As Rodney Hansen J observed in Medlab Hamilton Ltd v Waikato District Health Board, the discretion to make orders under r 382 [now r 10.12] is a wide one, to be
20 High Court Rules, r 10.13.
21 Regan v Gill [2011] NZCA 607 at para [9].
22 See also Medlab Hamilton Ltd v Waikato District Health Board (2007) 18 PRNZ 517 (HC) at para [8].
exercised broadly in the interests of justice We agree. Appeals from the exercises of discretion are never easy.
[31] In my view, there is no jurisdiction to consolidate existing proceedings with unissued but contemplated proceedings. Rule 10.12 contemplates the existence of “proceedings” as defined in the High Court Rules. Rule 1.3 provides:
1.3 Interpretation
(1) In these rules, unless the context otherwise requires,—
...
Proceeding means any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application
....
[32] There is also a question of standing. Neither of the Insurers are parties to the proceedings which they seek to consolidate. While they have carriage of MTEC’s defence, in my view the reason for consolidation is not so much the interests of MTEC but of the Insurers. While that is a factor to be put into the mix, it does not weigh heavily when compared with Pioneer’s desire to bring its proceeding to fruition promptly. Even if there were problems in achieving a payment of any
damages awarded in favour of Pioneer because of the need to pro rate entitlements,23
Pioneer will retain the ability, in its proceeding, to crystalise its claim in a dollar sum, for that purpose.
[33] In my view, the consolidation application turns on whether it is appropriate for this Court to stay the Pioneer proceeding while others catch up with it. The history of that proceeding, as recounted by Mr Patterson, for Pioneer, in his written submissions for the December hearing, is relevant:
(a) The proceeding was filed in April 2011. (b) Discovery was completed in early 2012.
(c) Alternative dispute resolution was attempted on 9 March 2012.
(d)A hearing was allocated to begin on 3 December 2012, with a setting down date of 7 September 2012.
(e) The s 9(6) application was filed on 20 July 2012, days before a judicial settlement conference was scheduled in the proceeding brought by Mr Sweeney and Ms Thompson.
(f) The existence of the claim brought by Mr Sweeney and Ms Thompson should have put the Insurers on notice of the s 9 problem24 much earlier.
(g) Pioneer filed an Amended Statement of Claim on 7 September 2012.
(h) MTEC has taken no steps with regard to that Amended Statement of
Claim.
(i) Pioneer’s proceeding was adjourned until April 2013 prior to the first
hearing of the Insurers’ application on 2 October 2012.
[34] The Insurers (wearing their MTEC hat) suggest that there remain many interlocutory issues that require resolution before the hearing. As a result, Mr Till contends it is inappropriate to retain the fixture. Among other things it is suggested that further particulars may be required, further discovery might be required in respect of additional causes of action pleaded in the September 2012 Amended Statement of Claim, and that the Council may need to be joined. As to the latter, leave of the Court would be required as the setting down date has passed. Mr Patterson disputes the need for any of those steps to be undertaken.
[35] Concerns expressed by the Insurers about the readiness of the Pioneer proceeding for hearing are relevant to whether an adjournment of that particular proceeding should be ordered. In my view, they do not tilt the balance in favour of consolidation of other proceedings or a stay of the Pioneer proceeding. Given the stage that Pioneer has reached and the time it would take for other proceedings to
reach the same stage,25 I see no reason to prevent Pioneer from proceeding. If the Pioneer proceeding were to go to trial, there is no real benefit to be gained from consolidating other extant proceedings.
[36] The s 9(6) declaration provides some certainty for the Insurers. There is an incentive for them to deal with other parties promptly, lest other claims come to their actual notice in the meantime. That incentive will be promoted also by the proximity of the April 2013 proceeding brought by Pioneer. The existence of that proceeding should act as a catalyst for the Insurers to facilitate settlement discussions, either through mediation or a judicial settlement conference, to resolve all outstanding issues among all parties. In the event that another defendant in any proceeding showed a disinclination to participate in a global settlement framework, it would always be open for one or more parties contributing to a settlement to take an assignment of the claim made by the person or persons with whom they are settling
to pursue legitimate questions of contribution.26
Costs
[37] The parties acknowledged that the Insurers’ applications are facilitating prompt resolution of the proceedings. All agreed that there should be no order as to costs.
Result
[38] For the reasons given:
(a) I declare that, as at 11 December 2012, the Insurers have actual notice of the following claims giving rise to charges over insurance moneys
payable under the contract of insurance entered into between MTEC
25 For example, the claim made by Calais Western Ltd was only filed in the last week of September
2012.
26 See, for example, Auckland City Council as Assignee of Body Corporate 16113 v Auckland City
Council [2008] 1 NZLR 838 (HC).
and the Insurers (dated 5 December 2007) for the period from 31
August 2007 to 30 August 2008:27
(i) Pioneer
(ii) Mr Sweeney and Ms Thompson
(iii) GJMPC Ltd
(iv) Calais Western Ltd
(v) Owners of Stage 1 properties at 48, 52 and 54 Western Road
(vi) Mr and Mrs Grundy (vii) Mr Collins and Ms Vos (viii) Mr and Mrs Davis
(ix) Mr and Mrs Curtis
(x) The Council
Any other claim that comes to the attention of the Insurers prior to any payment being made under the contract of insurance does not fall within the terms of this declaration.
(b) The applications for consolidation and stay are dismissed. (c) No order as to costs.
(d)Leave to apply is reserved in case there are any disputes over the form in which the declaration may be sealed.
These orders shall lie in Court, unsealed, until such time as an affidavit of service is filed confirming that notification of the 10 December 2012 hearing was given in accordance with my directions of 29 November 2012.28
[39] In the event that MTEC, through the Insurers, wishes to seek an adjournment of the Pioneer proceeding:
(a) MTEC shall file and serve an application for an adjournment supported by a memorandum setting out fully the basis for the adjournment application, no later than midday on 13 December 2012.
(b)Pioneer shall file and serve a notice of opposition and a detailed memorandum setting out its grounds of opposition no later than midday on 17 December 2012.
(c) Any application for an adjournment is set down for hearing (by telephone) before Lang J at 9.00am on 18 December 2012.
[40] I thank counsel for their assistance.
P R Heath J
Delivered at 12 noon on 11 December 2012
Solicitors:
Robertsons, PO Box 2068, Shortland Street, AucklandMinter Ellison, PO Box 3798, Auckland Morgan Coakle, PO Box 11455, Auckland Heaney & Co, PO Box 105391, Auckland
King Gerrard Partners, PO Box 327, Pukekohe
Counsel:
N Till QC, PO Box 252, ChristchurchMichael Lenihan, PO Box 129455, Auckland
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