Ramage v Earthquake Commission - [2016] NZHC 2327

IN THE HIG H COURT O F NEW ZEALAND CHRISTCHURCH REG ISTRY

CIV-2013-409-1302 [2016] NZHC 2327

BETWEEN
JOHN RAMAGE AND

MARY ANN RAMAGE Plaintiff

AND

EARTHQUAKE COMMISSION First Defendant

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED Second Defendant

Hearing: 27 July 2016

Appearances:

AJD Ferguson and J S Morriss for Plaintiffs
No appearance by or for First Defendant
BRD Cuff and S K Swinerd for Second Defendant

Judgment:

30 September 2016

JUDGMENT O F MANDER J

[1] As a result of for mal mediation between the plaintiffs, Mr and Mrs Ramage (the Ramages), and the second defendant, Southern Response Earthquake Services Li mited (Souther n Response), agreement was reached i n respect of the Ramages’ insurance claim arising from damage to their property as a result of the Canterbur y earthquakes. As part of that settlement costs and disbursements were to be fixed by the Court. This judgment addresses that issue w hich was not otherwise able to be agreed between them.

Background

[2] The Ramages own a property i n New Brighton that suffered damage during the Canterbur y earthquakes. The y made claims in respect of that damage which
were accepted by the Earthquake Commission (EQC) and Southern Response. The

RAMAGE v EARTHQUAKE COMMISSION & ANOR [2016] NZHC 2327 [30 September 2016]

Ramages and EQC were not able to reach agreement rega rding the remediation of the damage, and in particular whether the scope of the damage exceeded the statutor y EQC cap of $100,000 plus GST. EQC maintained the cost of remediation was under cap.

[3] The Ramages commenced proceedings against both EQC and So uther n Response i n July 2013 seeking the sum of $792,136.08. Both EQC and Souther n Response defended the proceeding.

[4] In December 2015, EQC resiled from its origi nal position and notified the Ramages it now considered the cost of repairing the damage to be over the statutor y cap. Proceedings were discontinued agai nst EQC after that concession was made. Thereafter, Southern Response accepted liability for all amounts exceeding the EQC payment, however, there remained dispute as to how much that was.

[5] The proceeding was settled at mediation on 13 April 2016. Souther n Response’s offer to pay the Ramages $205,000 was accepted. It was agreed that costs and disbursements were to be fixed by the Cour t. The proceeding against Southern Response was discontinued.

[6] EQC has paid the Ramages $32,677.51 in costs. This sum represents 50 per cent of the total costs based on reasonable 2B costs and disbursements.

The part ies’ respective positions

Submissions for the Ramages

[7] The Ramages submi tted the position taken by Southern Response prior to them commencing their proceeding was that it had no liability apart from damage to driveways and paths (out of scope exter nal works). Once proceedings were commenced, Souther n Response mai ntained the damage to their house was under the EQC cap and therefore it did not have any liability, potential or otherwise.

[8] The Ramages contend…

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 Ramage v Earthquake Commission

Details

AGLC: Ramage v Earthquake Commission [2016] NZHC 2327
Case: [2016] NZHC 2327
Decision Date: 30 September 2016

CaseChat Overview and Summary

In Ramage v Earthquake Commission and Another, the High Court was required to determine the costs and disbursements to be awarded in respect of a property damage insurance claim. The plaintiffs, Mr and Mrs Ramage, sought costs and disbursements from the defendant, Southern Response Earthquake Services Limited, after a settlement had been reached in their proceedings against both Southern Response and the Earthquake Commission (EQC). The EQC proceedings were discontinued after the EQC conceded the claim was over the statutory cap of $100,000 plus GST. The court found that Southern Response had acted unreasonably in its conduct during the proceedings, particularly in not clearly communicating its assessment of the claim to the Ramages. The court held that Southern Response was liable for 25% of the reasonable costs and disbursements claimed by the Ramages, amounting to $16,687.26. The court also awarded the Ramages costs of $1,672.50 on the application for costs and disbursements.

Orders