Robinson v IAG New Zealand Ltd

[2013] NZHC 2875

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2085 [2013] NZHC 2875

BETWEEN  CHRISTOPHER JOHN ROBINSON and ALISON CHRISTINA ROBINSON Plaintiffs

ANDIAG NEW ZEALAND LTD First Defendant

RUSSELL JOSEPH and MARTIN JORGENSEN

Second Defendants

MAURICE FLETCHER Third Defendant

ASB BANK LTD Fourth Defendant

Hearing:                   31 October 2013 (by telephone) Counsel:  RAB Barnsdale for Plaintiffs

CJ Hlavac for First, Second and Third Defendants
PV Shackleton for Fourth Defendant

Judgment:                31 October 2013

JUDGMENT OF BREWER J

Solicitors/Counsel:           Richard Barnsdale (Hamilton) for Plaintiffs

Young Hunter (Christchurch) for First, Second and Third Defendants

Simpson Grierson (Auckland) for Fourth Defendant

ROBINSON v IAG NEW ZEALAND LTD & ORS [2013] NZHC 2875 [31 October 2013]

[1]      By statement of claim filed on 23 April 2013, the plaintiffs commenced an action against the defendants seeking to enforce various insurance contracts.

[2]      The background, essentially, is that the plaintiffs’ house, its contents and their vehicles were destroyed in a fire.  The first defendant and fourth defendant had some involvement with the property, either as insurers or as lenders.  The second and third defendants were investigators tasked with enquiring into the cause of the fire.

[3]      The complicating factor is that the first named plaintiff, Mr Robinson, has been charged with arson relating to the fire which destroyed the relevant property. That case has yet to come to trial.  It is in the District Court and I note that the next callover is scheduled for 21 November 2013.  Mr Robinson has also been arrested on other charges arising, apparently, from his conduct in relation to decisions or actions taken by the defendants.  Mr Robinson is now on bail.

[4]      On 23 May 2013, the first, second and third defendants applied for an order for  an  interim  stay  of  this  proceeding.     The  fourth  defendant  supports  that application. The plaintiffs oppose.

[5]      The  order  sought  relates  to  the  fact  of  the  prosecution  for  arson.    The applicants submit that it is in the interests of justice for the criminal prosecution to be determined before any further steps are taken in the civil proceeding.  The reasons are obvious.  The critical factual issues will be the same and their elucidation in the criminal trial will be influential on, if not determinative of, this proceeding.

[6]      Mr Robinson, on behalf of himself and the second named plaintiff, filed the statement of claim and also the documents opposing the application for interim stay. However,  in  the  telephone  conference  today,  the  plaintiffs  are  represented  to  a limited extent by Mr Barnsdale.

[7]      Mr  Barnsdale  has  been  endeavouring  to  assist  the  plaintiffs  but  he  is hampered  in  what  he can  do  unless  legal  aid  is  granted by the  Legal  Services Agency.  Mr Barnsdale tells me that he has not been formally instructed to represent the plaintiffs in the telephone conference today, but he can tell me that legal aid

might be granted for this proceeding.  It has not been ruled out by the Legal Services Agency.  So far as he is aware, the plaintiffs knew of the telephone conference today, but he cannot guarantee that.

[8]      I note that this is the third or fourth attempt to have this matter adjudicated.  I also note that the statement of claim as drafted presently is severely deficient.  The facts, or at least some of the facts, are pleaded competently.  The causes of action go more into allegations of conspiracy and fraud than would be reasonable given the background.   I would say that the statement of claim as pleaded presently would have little chance of surviving a strike out application on the overall background situation  as  it  is  known  to  me.     Mr  Barnsdale  readily  accepts,  and  indeed volunteered, that if he obtains funding his first task will be to re-draft the statement of claim.

[9]      In my view, an interim stay in these circumstances is inevitable.  Nothing can be gained by further steps in the civil litigation process while the criminal case remains pending.

[10]     Accordingly, this proceeding is stayed until the conclusion of the criminal prosecution of the first named plaintiff, Christopher John Robinson, on one count of arson and two counts of attempting to obtain by deception under an indictment now in the Whangarei District Court .

[11]     I  make  one  caveat  to  that  ruling.     If  Mr  Barnsdale’s  lack  of  formal instructions to appear today has meant that some material argument not appearing already in the papers filed has been overlooked, leave is granted to the plaintiffs to file an application asking me to recall this judgment.  If I receive such an application, I  will  invite  a  written  response  and,  unless  there  is  something  extraordinary disclosed, I will deal with it on the papers.

[12]     In the circumstances I reserve the matter of costs.

Brewer J