Sanderson v IAG New Zealand Limited
[2024] NZHC 1570
•14 June 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-817
[2024] NZHC 1570
BETWEEN WAYNE PETER SANDERSON, GARY NEIL SANDERSON and PAUL JOSEPH
RUTLEDGE as trustees of the NO MONEY NO HONEY TRUSTPlaintiffs
AND
IAG NEW ZEALAND LIMITED
First Defendant
VERO INSURANCE NEW ZEALAND LIMITED
Second Defendant
ALLIANZ NEW ZEALAND LIMITED
Third Defendant
... continued over
Hearing: 4 June 2024 Appearances:
L J Lindsay and K M Anderson for Plaintiffs
B R D Cuff and N S P Laing for First, Second and Third Defendants
Judgment:
14 June 2024
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 14 June 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
SANDERSON v IAG NEW ZEALAND LIMITED [2024] NZHC 1570 [14 June 2024]
BARRY O’CONNOR CONSTRUCTION LIMITED
Fourth Defendant
QBE INSURANCE (AUSTRALIA) LIMITED
Fifth Defendant
BARRY MICHAEL O’CONNOR
Sixth Defendant
[1] The plaintiffs are the owners of a commercial building in Christchurch that suffered earthquake damage. They allege their insurers, the first to third defendants (the insurers), elected to repair the earthquake damage but the work was defective and resulted in further damage. They bring a claim against the insurers, the building contractor engaged to carry out the remedial works (the fourth defendant), the insurer of the project manager engaged for the remedial works (the fifth defendant), and the director of the fourth defendant (the sixth defendant).
[2] This judgment is concerned with applications by the plaintiffs against the insurers for:
(a)further particulars of the insurers’ statements of defence to the plaintiffs’ third amended statement of claim; and
(b)further discovery.
[3] The case is well advanced towards a hearing. The close of pleadings date has passed and the plaintiffs have already served their briefs of evidence. They have, however, obtained leave to pursue this application after close of pleadings.1
Background
[4] The plaintiffs’ property is at 21 Dalziel Place, Woolston. It consists of a concrete tilt-slab warehouse but also includes office and service areas, an external yard and carparking. The property was damaged during the Canterbury earthquake sequence of 2010–2011. The plaintiffs lodged a claim for damage to the improvements with the insurers and the claim was accepted.
[5] The plaintiffs allege that the insurers unilaterally engaged Hawkins Construction Ltd (Hawkins) and related entities as their agent to scope the proposed repairs and to project manage those repairs. They say Hawkins recommended that the fourth defendant be appointed as the building contractor for the repairs, and on or around 23 July 2012 the plaintiffs entered into a building contract with the fourth
1 Sanderson v IAG New Zealand Ltd [2024] NZHC 1003.
defendant to carry out works according to a scope of works jointly prepared by Hawkins and the first defendant.
[6] The plaintiffs plead that the works were not sufficient to adequately repair the original earthquake damage and were carried out in a defective manner resulting in further damage. The plaintiffs rely on three causes of action against the insurers. Very broadly they are that because the insurers exercised their option to reinstate the property the policy became a contract to repair and the insurers have not met their obligations under the policy, and that the insurers breached an implied duty of good faith or duty of care in scoping and supervising the remedial work.
[7] The proceeding was commenced in 2018 and has a long history. On 4 November 2019, this Court endorsed counsel’s proposal that the parties were to give informal discovery.2 The parties have proceeded on that basis, although the plaintiffs also provided an affidavit of documents on 31 January 2020.
[8] The parties have also gone through a joint expert reporting (JER) process and the respective experts submitted a joint experts’ report to the Court on 9 March 2022. The insurers’ engineer, Matt Harris of Babbage Consultants Ltd (Babbage), participated in the JER process. The parties have also attended an unsuccessful mediation.
[9] On 4 August 2023, Associate Judge Lester made certain pre-trial directions by consent, which included that the close of pleadings date was 22 December 2023. There were also directions made for the parties to serve briefs of evidence. The plaintiffs exchanged their briefs of evidence not withstanding that this application remained unresolved. The defendants have not exchanged their briefs of evidence which are due on 31 July 2024.
The issues in the proceeding
[10] The pleadings identify that there are many contested issues between the plaintiffs and the insurers. Regarding these applications, those issues include:
2 Sanderson v IAG HC Christchurch CIV-2018-409-817, 4 November 2019 (Associate Judge Lester, Minute).
(a)What damage was suffered to the property in the earthquakes?
(b)Whether the insurers elected to repair the property so that the policy became a contract to repair in respect of that earthquake damage?
(c)Whether Hawkins was the insurers’ agent to scope and project manage those repairs?
(d)Whether the scope of works and repairs were defective, and if so what further damage was caused to the property?
(e)What repairs were required to repair the damage to the policy standard?
Further particulars – the principles
[11] Rule 5.21(3) of the High Court Rules 2016 (the Rules) provides where a party who has been served with a notice requiring further particulars or a more explicit pleading neglects or refuses to comply with the notice the court may:
… if it considers that the pleading objected to is defective or does not give particulars properly required by the notice, order a more explicit pleading to be filed and served.
[12]Rule 5.48 provides:
5.48 Requirements of statement of defence
(1)The statement of defence must either admit or deny the allegations of fact in the statement of claim, but a defendant does not have to plead to an allegation that does not affect that defendant.
(2)A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out how much was received. When a matter is alleged with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given.
(3)An allegation not denied is treated as being admitted.
(4)An affirmative defence must be pleaded.
(5)The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant’s defence.
[13] Proper particularisation of pleadings is important. The primary functions of pleadings are to define the issues, limit the matters to be put in issue at trial, inform the parties in advance of the hearing of the case they have to meet, and to enable the parties to take steps to deal with the case they are facing by beginning preparation ahead of the formal exchange of evidence.3 Pleadings also provide a basis for pre-trial settlement discussions.4
[14] In Price Waterhouse v Fortex Group Ltd the Court of Appeal noted that pleadings are an essential roadmap for the court and the parties that establish the parameters of the case against which the briefs of evidence are, or should be, prepared. The court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries.5
[15] The insurers emphasise, and I accept, that pleadings are not an area for mechanical approaches, pedantry or prolixity and that the temptation to require excessively refined pleadings is to be resisted as both unnecessary and wasteful of the parties’ costs and the court’s resources.6 That said, the modern approach to pleading emphasises full disclosure of each party’s case to secure the just, speedy, and inexpensive determination of any proceeding, consistent with r 1.6 of the Rules. Litigation is to be conducted fairly, openly, without surprises, and in a way which reduces hearing time and saves costs.7 A common-sense and balanced judgement based on experience as to how cases are prepared and trials work is required.8 Ultimately, the court has to ask, “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?”9
3 Marley New Zealand Ltd v Skellerup Rubber Services Ltd [2013] NZHC 1653 at [12]–[13].
4 Platt v Porirua City Council [2012] NZHC 2445 at [19].
5 Price Waterhouse v Fortex Group CA179/98, 30 November 1998 at 17–19.
6 BNZ Investments Ltd v Commissioner of Inland Revenue (2008) 23 NZTC 21, 821 at [45].
7 Marley New Zealand Ltd v Skellerup Rubber Services Ltd, above n 3, at [13].
8 Price Waterhouse v Fortex Group Ltd, above n 5, at 19.
9 At 19.
[16] Generally it will not be sufficient for a defendant to provide bare denials to paragraphs in a statement of claim containing more than one allegation because a bare denial may not answer the allegations in substance and may be evasive. In Marley New Zealand Ltd v Skellerup Rubber Services Ltd, Wylie J noted:10
[17] In recent years, the High Court Rules have moved towards favouring greater disclosure. A series of bare denials is not generally acceptable under principles of modern pleading. Nor is a statement of defence which consists of a series of denials which do no more than put the plaintiff to proof and provide no answer in substance to what is alleged. Obviously, however, what detail is necessary will depend upon the facts of each case.
(footnotes omitted)
[17] Counsel agree that a party’s pleading obligation does not remain static. Its knowledge of the case develops over time through the litigation process by discovery, inspection, the briefing of witnesses, the engagement and advice of experts and the exchange of evidence. The pleadings should reflect this.11
[18] Finally, the insurers submit, and I accept, that even if this Court finds that a pleading is defective it may decline to order particulars if to do so is more consistent with the objectives of the Rules.12
The particulars sought
Paragraph 19
[19]Paragraph 19 of the third amended statement of claim reads as follows:13
As a result of the Earthquakes, the Improvements suffered damage, resulting in a loss under the Policy (Original Damage), as particularised in the report of Project Structure dated 9 August 2019 (relied on as if pleaded in full), but including, inter alia, the following:
19.1Cracking to multiple precast wall panels;
19.2Bowing of wall panels;
19.3Flexural cracking in concrete end wall columns;
10 Marley New Zealand Ltd v Skellerup Rubber Services Ltd, above n 3.
11 Body Corporate 384825 v Queenstown Lakes District Council [2021] NZHC 1157 at [34]–[35].
12 Malley & Co v Burgess [2015] NZHC 841 at [25]; and Ash v Singh [2019] NZHC 2790 at [102] and [120].
13 All references to paragraph numbers refer to the third amended statement of claim.
19.4Cracking to concrete ground floor slab;
19.5Cracking to topping concrete on suspended floor;
19.6Cracking to multiple concrete column encasements;
19.7Damaged mortar pack under steel columns;
19.8Damage to precast panel joint sealant;
19.9Spalled concrete in panels;
19.10Humping, subsidence and cracks to asphalt in the yard / carpark;
19.11Damage to roof;
19.12Office door no longer closing properly;
19.13Cosmetic damage to office areas requiring replastering and repainting;
19.14Damage to lighting covers;
19.15Dis-levelment of the Warehouse and office due to settlement;
19.16Residual displacement of precast panels and portal frames.
[20]The insurers’ statement of defence responds as follows:
19 They: 19.1
Say that on and after 4 September 2010, Christchurch suffered a series of earthquakes and aftershocks (Earthquakes).
19.2
Say that the Property suffered damage caused by one or more of the Earthquakes, but say the extent of that damage is disputed.
19.3
Rely on the description of that damage initially assessed by Babbage Consultants in July 2011.
Particulars
·Babbage structural assessment report dated 14 July 2011
19.4Say that works conducted by the fourth defendant retained by the plaintiff trust, further particulars of which are set out in paragraph 20 herein, caused further, discrete damage to the Property.
Particulars
·Project Structure letter to the plaintiff dated 9 August 2019
·Babbage Structural Peer Review report dated 25 March 2020
They otherwise deny paragraph 19.
[21] The plaintiffs consider that the insurers’ pleading to paragraph 19 fails to comply with r 5.48 because:
(a)it does not specify what damage listed in paragraphs 19.1 to 19.16 is accepted as having been caused by the earthquakes;
(b)it does not specify what damage identified by Babbage in July 2011 the insurers accept as having been caused by the earthquakes and is evasive because it fails to take account of developments since then, including the participation by the insurers in the JER process;
(c)in response to paragraph 19.4, it does not provide proper particulars of the:
(i)further discrete damage said to have been caused to the property; and
(ii)the timing and nature of the works conducted by the fourth defendant which the insurers say caused the further discrete damage to the property.
[22] The insurers argue that their pleading is not evasive and is a full response to the allegations. They say the pleading sufficiently informs the plaintiffs of the insurers’ position on:
(a)the damage the insurers accept to have been caused by the earthquakes by virtue of the Babbage report of 14 July 2011; and
(b)the further discrete damage caused by the works by virtue of the Project Structure letter of 9 August 2019 and the Babbage peer review of 25 March 2020.
[23] The insurers say the plaintiffs do not require a better pleading to prepare their case as they have already exchanged their evidence, and pressing them for a more informative response may give a better pleading but will not otherwise make a difference to how the case is run or how the plaintiffs prepare their case.14
[24] I consider the insurers’ pleading is unsatisfactory in several respects. First, I consider the pleading is evasive to the extent that it does not state what pleaded damage the insurers accept or deny as having been caused by the earthquakes. There is only a bare statement that the extent of the damage is disputed. The plaintiffs are also correct in my view that it is not sufficient that the insurers plead based only on the contents of the Babbage report of July 2011 but must also take into account knowledge that has been acquired since then, notably in the JER process.
[25] The reference by the insurers to the consultants’ reports as providing particulars of general allegations is unsatisfactory also. The plaintiffs are entitled to a clear pleading stating the insurers’ position. Neither the plaintiffs nor the Court can be expected to trawl through other documents in an attempt to understand the insurers’ case. While I accept the plaintiffs have themselves referred to a consultant’s report in their paragraph 19, they have gone on to particularise what they say was the damage suffered by the improvements at the property.
[26] Further, in paragraph 19.4 of the insurers’ statement of defence, the reference to paragraph 20 is unhelpful because paragraph 20 does not provide any further particulars of discrete damage caused by works conducted by the fourth defendant.
[27] I do not accept the insurers’ submission that the plaintiffs do not require particulars as they have exchanged their evidence and clearly understand the insurers’ case. I accept the plaintiffs exchanged their evidence for a pragmatic reason, to avoid delay, notwithstanding that their request for particulars remained unresolved. Further, the exchange of evidence is not a substitute for clear pleadings.15
14 Ash v Singh, above n 12, at [102].
15 Price Waterhouse v Fortex Group Ltd, above n 5, at 17.
Paragraphs 29 and 30
[28] In paragraph 29 the plaintiffs plead that through an employee Hawkins recommended the fourth defendant be appointed the building contractor for the earthquake repair work. The recommendation was accepted. Paragraph 30 pleads that on or about 2 July 2012 Hawkins obtained a quote from the fourth defendant which it then accepted without reference to the plaintiffs. The insurers do not plead to these allegations and say they are not required to as the allegations do not affect them.16
[29] I do not accept the insurers’ position. The plaintiffs allege in paragraph 24 of the third amended statement of claim that the first defendant engaged Hawkins and that Hawkins acted as the agent of the insurers throughout the engagement to scope and project manage the earthquake repairs. The plaintiffs’ pleadings at paragraphs 29 and 30 do therefore concern the insurers and they are required to plead to them.
Paragraphs 42 to 44
[30] In paragraph 41 the plaintiffs plead that, due to scope and performance deficiencies, the repair works did not properly remediate the earthquake damage and they provide particulars of both deficiencies. At paragraph 42 the plaintiffs plead how the work resulting from the performance deficiencies was defective.
[31] The insurers plead they have insufficient knowledge of the alleged defective work and deny paragraph 42. The insurers accept that through the litigation process they have obtained knowledge of the property, but say their knowledge of what repair work was defective is still incomplete and it is not evasive but entirely reasonable for them to plead as they do. Importantly, the insurers submit that if the plaintiffs are in fact unclear about their position that will be resolved when the insurers’ file their evidence on 31 July 2024.
[32] The plaintiffs argue that the insurers’ pleading is unacceptable because the insurers have carried out inspections of the building and participated in the JER process and do have knowledge of the defective work. They say, for instance, the
16 High Court Rules 2016, r 5.48(1).
insurers’ engineer, who took part in the JER process, commented on the adequacy of previous repairs.
[33] I consider the insurers should provide a specific pleading as to whether they accept or deny each item of alleged defective work. While it may once have been the case the insurers did not have knowledge of what (if any) work was defective, the insurers must now have sufficient knowledge to provide a substantive response to these allegations. I note, for instance, that four of the five items of alleged defective work relate to inadequate repairs to cracks in concrete panel walls and floor slabs which is a matter upon which the insurers’ expert comments on in the JER.
[34] In any event, the insurers accept their position will be made clear when their evidence is exchanged on 31 July 2024. As the plaintiffs are suggesting that the further particulars be supplied along with the insurers’ evidence, there can be no objection to the plaintiffs’ request.
[35] At paragraph 43 the plaintiffs plead that further damage has occurred to the property as a result of scope and performance deficiencies. The same arguments have been made as in relation to paragraph 42, and for the same reasons the insurers should provide a specific pleading to this allegation.
[36] In paragraph 44, the plaintiffs plead substantial repairs are now required to the improvements in order to repair the earthquake damage and further damage to the policy standard. The repairs required are not particularised except by reference to a scope of works of Hanham & Philp with “further details to be particularised prior to trial”. The insurers have again pleaded they have insufficient knowledge and deny this allegation.
[37] I do not consider the insurers are required to provide a further pleading to paragraph 44. The plaintiffs’ pleading contemplates further particulars would be provided but they have not. For reasons I have already given above (at [25]) the insurers cannot be expected to plead to a consultant’s report.
Paragaraph 50
[38] Paragraph 50 pleads that as a consequence of the plaintiffs’ prior pleadings “including especially paragraph 41” the insurers have not met their obligations under the policy and are in breach. The insurers deny paragraph 50.
[39] The plaintiffs argue the insurers’ pleading is unsatisfactory and evasive because the insurers should confirm whether they are putting the plaintiffs to the proof, and if not explain in what respects the insurers have complied with their obligations.
[40] The plaintiffs’ pleading is very general in its terms, and to the extent that it refers to paragraph 41 the plaintiffs have not taken any issue with the insurers’ pleading to that paragraph. The insurers have plainly put the plaintiffs to the proof of the allegation. Given the way the pleading is framed, I do not see the insurers can be required to do more. Certainly, I do not consider the insurers are required to plead in what respects they complied with their obligations under the policy as the plaintiffs assert.17
Paragraph 57
[41] Paragraph 57 contains allegations that the insurers breached a duty of good faith owed to the plaintiffs. There are eight separate allegations of breach of duty. The plaintiffs say that the paragraph contains negative allegations with detailed supporting material facts which have not been answered. They argue the insurers’ bare denial of each of the alleged breaches of duty does not confirm if they are putting the plaintiffs to the proof of the allegations, otherwise the insurers must specify how they have met their obligations.
[42] The insurers say their pleading is appropriate as they deny they owe the duty of good faith and should not have to plead to as to how they did not breach a duty which they say they did not owe. Also, the insurers argue the allegations of breach of duty are simply repetitions of previous paragraphs in the statement of claim to which they have already sufficiently pleaded. Further, the requested particulars are not
17 Murphys Park Developments LP v Green City Developments LP [2022] NZHC 2727 at [32].
necessary to fairly inform the plaintiffs of the insurers’ case and the insurers are not required to set out all of their conduct, which they say complied with the alleged duty, so the plaintiffs may then identify what aspects of that conduct they say the insurers fell below.18
[43] In my view, the insurers should not be required to provide the further particulars sought. The insurers’ position is clear. The plaintiffs are being put to the proof as to the existence and breach of the alleged duty. Contrary to the plaintiffs’ submissions, the supporting material facts are general in terms and invite a simple admit or deny response. Importantly, the same allegations are made earlier in the statement of claim to which the insurers have pleaded.
Paragraph 68
[44] This is an affirmative limitation defence. The insurers’ pleading is cryptic and is in these terms:
68 The plaintiff’s third cause of action against IAG in negligence is time-barred by s 11 of the Limitation Act 2010 to the extent the cause of action is based on actions by IAG that occurred prior to 12 February 2015.
[45] The plaintiffs say this pleading is inadequate because it is not clear what occurred on 12 February 2015, and it therefore does not comply with the requirements of affirmative defences in r 5.48.
[46] The position has been clarified by the insurers. They say the date of 12 February 2015 is six years prior to the date the cause of action in negligence was first pleaded by the plaintiffs. It is therefore said further particulars are not now required for the plaintiffs to understand the insurers’ affirmative defence.
[47] Whilst I accept that the matter has now been clarified by counsel, it is clear from the plaintiffs’ reply to the affirmative defence their counsel did not understand what was being alleged. The insurers should be required to plead clearly the basis for the affirmative defence.
18 Murphys Park Development LP v Green City Developments LP, above n 17, at [32].
Discovery application
[48] The plaintiffs seek discovery of documents in the possession of loss adjusters and consulting engineers McLarens Young International, Babbage and Crawford & Company NZ. These companies were engaged by the insurers in handling the plaintiffs’ insurance claim. The plaintiffs say documents held by them are of obvious and direct relevance to the proceeding and should be discovered. It does not now appear to be disputed that the companies are in possession of relevant documents and that they are in the control of the insurers.
[49] The plaintiffs consider that the insurers have been evasive as to whether, in giving informal discovery, they obtained and discovered the files of these companies. To understand why that is the case some further background is required.
[50] On 28 April 2023, the plaintiffs’ solicitors wrote to the insurers’ solicitors identifying that their discovery had contained correspondence with the third parties and asking the insurers to advise “whether IAG has obtained and discovered the files of these parties for discovery purposes”. There was a response from the insurers’ solicitors on 9 June 2023, which did not directly address the query but rather stated:
If your client is now requesting formal discovery, including of documents which may be held by third parties for example, then our view is that it is something that all parties should undertake including your clients.
[51] The plaintiffs’ solicitors responded on 21 June 2023, noting that the insurers’ solicitors had not directly addressed the query but took their comments as confirmation that files of third parties for discovery had not been obtained.
[52] The matter was raised again in further correspondence between counsel in February 2024. On 22 February 2024, the plaintiffs’ counsel wrote to the insurers’ counsel, referring to a telephone conversation between them on 16 February 2024 and noting that clarification was being sought in respect of several matters including:
... regarding IAG’s discovery of documents held by third parties within its control (McLarens, Babbage, Crawford & Co ...) (see email of 21 June 2023);
...
[53]The response from the plaintiffs’ counsel was:
[Duncan Cotterill] have reviewed the discovery they have provided and have identified some further photographs which may not have been discovered previously from Crawford & Co. These will be forwarded on. Otherwise our clients have no further documents to discover.
[54] The plaintiffs say the question that has been asked of whether the companies’ files had been obtained and discovered has not been answered, and it remains unclear whether the insurers have made proper enquiries of them in compliance with their discovery obligations.
[55] The insurers argue that they are aware of their discovery obligations, and have carried out a reasonable search for documents and disclosed to the plaintiffs and other parties all relevant information within their control. They say to the extent that the plaintiffs seek “further discrete documents” which they consider may be held by third parties they should apply under r 8.21 for discovery against those non-parties.
[56]Regardless, the insurers argue they have attended to discovery because:
(a)the insurers have made enquiries of the companies (through the McLarens umbrella group of loss-adjusting companies) and have disclosed 23 further photographs to the plaintiffs;
(b)they have already pleaded reliance upon a Babbage engineering report and disclosed that report, and a subsequent report also; and
(c)they have confirmed in counsel’s email of 23 February 2024 that there are no further documents to discover.
[57] The position of the insurers is curious and unsatisfactory. Whilst it is suggested that the plaintiffs should make an application for non-party discovery, I understood counsel to accept that documents held by the third parties are within the insurers’ control and in those circumstances such an application should be unnecessary.
[58] Secondly, there is a suggestion that because “[n]o formal discovery orders have been made in these proceedings” the insurers’ discovery obligations are somehow less than might otherwise be the case. I did not understand counsel to pursue that
argument, but even had he done so I would not have accepted it. In any case, the fact the Court has previously sanctioned informal discovery would not be any impediment to it now ordering the insurers to provide discovery on a formal basis if there were circumstances to suggest that was necessary because of concern that relevant documents may exist but have not been discovered.19
[59] Further, and to put the matter plainly, it is difficult to see why the insurers have not answered the query directly. I do not accept they have ever done so, including in counsel’s email of 23 February 2024. In my judgment on the leave application I said:20
[26] ... The insurers do not state clearly whether they have sought these documents from the third parties, although I can infer they have not as counsel’s submissions conclude “[t]hese documents (if they exist) are irrelevant and are also not in the possession or control of insurers”. This response raises questions as to how the insurers know that any documents that exist are irrelevant, and on what basis it is said that any documents that do exist are not in the insurers’ control. ...
The position has not changed since then. There is no clear statement from the insurers, or their advisers, that the companies were requested to provide all relevant documents, that they were received, that they have been sorted for relevance or that they were discovered.
[60] Whilst it would not be appropriate at this late stage to order the insurers to provide formal standard discovery, I do consider it is necessary they provide an affidavit stating what steps were taken to obtain documents from the companies, that each has provided its documents and that all relevant documents have been discovered.
Result
[61] In respect to the discovery application, I order that within 21 days the insurers are to file an affidavit addressing the matters outlined above at [60]. I grant leave to the plaintiffs to further apply in respect of any issues arising from that affidavit.
[62] In response to the request for further particulars, the insurers are by 31 July 2024 to provide an amended pleading as follows:
19 Mackintosh v Thomas [2015] NZHC 2317 at [54].
20 Sanderson v IAG New Zealand Ltd, above n 1.
(a)in respect to paragraph 19 they shall provide the particulars sought by the plaintiffs at paragraphs 1.1 and 2 of the schedule to the notice of application (the schedule);
(b)in relation to paragraphs 29 and 30 they shall provide the particulars sought at paragraph 3 of the schedule;
(c)in relation to paragraphs 42 and 43 they are to provide particulars as to whether they accept or deny each item of alleged defective work and further damage; and
(d)in relation to paragraph 68 they are to state what occurred on 12 February 2015 and the basis upon which it is said the second cause of action is time-barred by reference to the sections of the Limitation Act 2010.
[63] As far as costs are concerned, the plaintiffs seek costs and it would appear they have been substantially successful both in relation to the application for leave and on this substantive application. In the usual course costs would follow the event. I expect counsel will be able to confer and agree on costs, but if there are any issues arising and costs cannot be agreed memoranda (of no longer than six pages) may be filed within 28 days and I will determine costs on the papers.
O G Paulsen Associate Judge
Solicitors:
White Fox & Jones, Christchurch Duncan Cotterill, Wellington Anderson Lloyd, Christchurch Hazelton Law, Wellington
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