Scotchbrook v Southern Response Earthquake Services Limited

[2021] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-791

[2021] NZHC 1186

BETWEEN

TRUDY SCOTCHBROOK AND ROGER JOHN SCOTCHBROOK
Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing:	12 May 2021
Appearances:	J W Goddard and R E Walsh for Plaintiffs B J Entwistle for Defendant
Judgment:	26 May 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 26 May 2021 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar

Date:

SCOTCHBROOK v SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2021] NZHC 1186 [26 May 2021]

[1]    Trudy and Roger Scotchbrook (the Scotchbrooks) have applied to review orders made by Associate Judge Lester concerning the management of their proceeding against the defendant, Southern Response Earthquake Services Ltd (Southern Response). Two of the Associate Judge’s directions remain in contention and are sought to be reviewed. The first is the fixing of a close of pleadings date. Second is an order allowing Southern Response a further site visit.

Background

[2]    The Scotchbrooks’ property suffered earthquake damage in the Canterbury earthquake sequence of 2010–2011. They made a house claim and brought proceedings for the alleged failure by Southern Response to remediate the earthquake damage. The Scotchbrooks maintain their home is beyond economic repair and should be rebuilt, whereas Southern Response say the house can be repaired.

[3]    The matter has been in the Christchurch High Court Earthquake List since   31 August 2016. It has been the subject of two vacated three-week fixtures set to commence respectively on 10 June 2019 and 2 March 2020. The matter has now been allocated a three week hearing, commencing on 30 August 2021. Orders were made by Associate Judge Lester on 9 February 2021 in response to memoranda filed by the parties.

[4]    In his memorandum of 3 February  2021,  counsel  for  the  Scotchbrooks,  Mr Goddard, sought a close of pleadings date of 24 February 2021. It was noted that no close of pleadings date had been allocated and a concern was expressed that Southern Response had advised of its intention to amend its pleadings to include an affirmative defence alleging failure by the Scotchbrooks to mitigate damage. No amended statement of defence had yet been served and counsel observed that setting a close of pleadings date would assist in preserving the fixture date. In addition to other anodyne timetabling orders, the Scotchbrooks sought a direction that all interlocutory applications be filed no later than 31 March 2021.

[5]    In its separate memorandum of 4 February 2021, Southern Response confirmed that it intended to amend its pleading to include an affirmative defence on the basis that the Scotchbrooks had failed to mitigate their loss by failing to agree to

temporary works to ensure their property was weathertight and to prevent further deterioration. It anticipated that comments by its experts regarding deterioration in the condition of the property would be included in foreshadowed supplementary briefs of evidence.

[6]    Southern Response advised that it did not intend to make any interlocutory applications and agreed that a close of pleadings date should be set but that it ought to be after the date for filing interlocutory applications. Southern Response also advised that it required a further site visit for the purpose of obtaining further details and documentation in relation to its repair methodology and to obtain further costing advice. Counsel for Southern Response noted that additional evidence relating to this repair methodology would be provided by way of “short supplementary briefs”.

Associate Judge’s directions of 9 February 2021

[7]    In response to the memoranda filed by the parties, Associate Judge Lester noted that the parties were agreed on the timetabling directions, save for Southern Response’s suggestion of reversing the order of the close of pleadings date and the date for filing interlocutory applications.1 The Associate Judge agreed with that suggestion.    He   directed   that   all   interlocutory   applications   be   filed    by    24 February 2021 and imposed a close of pleadings date of 31 March 2021. It was noted that Southern Response had advised that it did not intend to make any interlocutory applications but, in the event either party did file such an application, it was to be referred to him to allocate a telephone conference to ensure it was dealt with in a manner that preserved the 30 August fixture.

[8]    The Associate Judge granted the defence application for an order to access the site, and directed the Scotchbrooks’ counsel to advise Southern Response’s counsel of a suitable time for that to occur, with a half day to be available. A timetable was put in place for the provision of that advice and the setting of the date for the site visit. Southern Response was directed to ensure that only the minimum number of people reasonably necessary attended the inspection. The Associate Judge denied Southern

1      Scotchbrook v Southern Response Earthquake Services Ltd HC Christchurch CIV-2016-409-791, 9 February 2021.

Response’s request for two site inspections and directed counsel for Southern Response to endeavour to ensure all inspections took place at the one visit.

[9]    Provision was made for all supplementary briefs to be served no later than   30 June 2021. Leave was reserved for the parties to seek a telephone conference at short notice after counsel had taken the opportunity to consider the Associate Judge’s directions and take instructions. It was emphasised the priority was to ensure the August fixture date was preserved, and that if any issues arose counsel were to seek a telephone conference as soon as possible with the Associate Judge.

[10]   The Scotchbrooks filed a further memorandum, dated 17 February, in which they raised concerns about Southern Response’s proposed affirmative defence. It was noted that once the defence was filed the Scotchbrooks would have 10 days to file a reply and that this needed to be included in the timetabling. It was also observed that a consequence of the proposed defence was the likelihood of “fresh evidence” relating to the mitigation issue being required from both parties, and that sequential timetabling would be necessary. The Scotchbrooks’ preliminary view was that the proposed affirmative defence would likely cause further delay and prejudice their claim. It was anticipated by their counsel that an application to strike out all or part of the affirmative defence would be made. Mr Goddard submitted the Scotchbrooks should have a minimum of one month after any amended pleading is filed to apply to strike out that pleading. It was also contended that, until such a strike out application was determined, any orders regarding further site visits were premature and a reversal of the order relating to the site visit was sought.

[11]   In its memorandum of 19 February, filed in response, Southern Response confirmed its intention to file an amended statement of defence that included an affirmative defence, and that it would be able to comply with the timetabling for the service of supplementary briefs by 30 June. It was noted that evidence relating to the affirmative defence could be addressed in a supplementary brief of evidence from an existing witness, Mr Creighton, which the defendant intended to file in any event, irrespective of the proposed revised pleading. Southern Response did not accept the site visit ought to await the determination of any application for strike out, and noted the primary purpose of the visit was to provide “responding information that goes to

the criticisms of the defendant’s [repair] methodology in the plaintiffs’ reply briefs of evidence”. It was also anticipated that any additional evidence would be included in Mr Creighton’s supplementary brief of evidence. However, Southern Response raised the possibility of a brief of evidence being required from the relevant contractor and submitted that the Scotchbrooks will “still have plenty of time to provide evidence in response under the current timetable and no prejudice will be caused to them”.

Associate Judge’s directions of 19 February 2021

[12]   Associate Judge Lester issued a further minute, dated 19 February.2 The Associate Judge reiterated that he had made directions in relation to a site visit, and for the filing and service of an amended statement of defence and he expected there to be compliance. In relation to the timing of interlocutory applications, the Associate Judge recorded that, should the amended statement of defence necessitate an interlocutory application by the Scotchbrooks, he would view that as a different matter from interlocutory applications that might otherwise have been contemplated on the present state of the pleadings. The Associate Judge expressly remarked that Southern Response could not deprive the Scotchbrooks of the right to challenge a new defence that only arose in an amended defence filed on the close of pleadings date.

[13]   For the avoidance of doubt, Associate Judge Lester granted leave to the Scotchbrooks to file an interlocutory application to challenge any new positive defence contained in the foreshadowed amended defence, and made timetabling directions accordingly. The Associate Judge reserved the question of whether leave would be granted for any supplementary evidence arising from the amended pleading, noting that if a new positive defence was to be raised Southern Response should provide its evidence in support of that additional defence promptly. The Judge directed counsel to confer on when evidence in support of the defence should be filed. He indicated a tentative date of mid-May 2021, and noted that a telephone conference could be convened in the event of no agreement.

2      Scotchbrook v Southern Response Earthquake Services Ltd HC Christchurch CIV-2016-409-791, 19 February 2021.

[14]   In relation to the issue of Southern Response filing supplementary evidence regarding its repair strategy, Associate Judge Lester stated:3

It would not be acceptable for the defendant to file significant new evidence pursuant to the leave to file supplementary evidence particularly when, at the moment, such is timed to come in at the end of June 2021. Briefs have been exchanged and supplementary evidence would generally be limited to updating evidence.

[15]   After noting Southern Response’s advice in its earlier memorandum that information provided by the contractors who were to attend the site visit would be included in the supplementary brief of an existing witness, Mr Creighton, the Associate Judge observed:

[13] Again, leave to file supplementary evidence is not leave to open  up  new areas of expert evidence when expert briefs were directed to be filed by the middle of 2020. However, until Mr Creighton’s supplementary evidence is seen, it is impossible to know whether in fact any issue is raised. The defendant is however on notice that given at the moment supplementary briefs are coming in only two months prior to the hearing, that it will not be acceptable for the defendant to open up entirely new areas of expert dispute and put the fixture at risk. If such is intended then the defendant is to advise what a “fresh” approach to supplementary evidence they intend to file and when.

[16]   On 25 March, Southern Response filed an amended statement of defence, including an affirmative defence of failure to mitigate. The following day the Scotchbrooks filed an application to review Associate Judge Lester’s orders. Leave to apply out of time was granted by Osborne J on 1 April, at which time he also directed that the orders were stayed pending delivery of the Court’s judgment on review.4 As part of the review application, the Scotchbrooks also sought to challenge the Associate Judge’s decision to decline the request for an in-person conference. Southern Response does not oppose the Scotchbrooks’ request for an in-person case management conference. However, it is opposed to the balance of the orders sought on the application for review, each of which I address in turn. Before doing so, I turn to a preliminary issue regarding the jurisdiction to review an Associate Judge’s case management orders.

3 At [11].

4      Scotchbrook v Southern Response Earthquake Services Ltd HC Christchurch CIV-2016-409-791, 1 April 2021.

Review of Associate Judge’s case management orders

[17]   The proceeding was filed on 31 August 2016, so was pending on 1 March 2017 and is thereby subject to s 26P of the Judicature Act 1908 (the Act) rather than the Senior Courts Act 2016. Rule 2.3 of the former High Court Rules 2016, which applies to applications for review under the Act, provides that an application for review is required to be brought within five working days of the relevant decision. Section 26P(1) of the Act provides that:

(1)Any party to any proceedings who is affected by any order or decision made by an Associate Judge in Chambers may apply to the Court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the Court—

(a)Must review the order or decision in accordance with the High Court Rules; and

(b)May make such order as may be just.

[18]   It follows that s 26P(1) only applies to an order or decision made by an Associate Judge in chambers. Section 26P(2) prescribes that a challenge to any other decision of an Associate Judge be made by way of appeal to the Court of Appeal. A hearing in chambers was defined under r 1.3 of the Rules as a hearing that takes place in circumstances in which the general public is not admitted, except with the leave of the Judge, and includes any conference held under these rules.

[19]   Whether a decision is made “in Chambers” pursuant to s 26P(1) turns on the nature of the application leading to the decision and the different jurisdictions of Associate Judges conferred by ss 26I and 26P of the Act.5 Associate Judge Lester’s minute dated 19 February related to the timetabling and filing of interlocutory applications, including granting leave to the Scotchbrooks to file an interlocutory application to challenge any new affirmative defence contained in Southern Response’s amended defence. As an interlocutory application is always required to be determined in chambers, unless a judge otherwise directs,6 and the 19 February minute

5      Faloon v Commissioner of Inland Revenue (2013) 21 PRNZ 454 (HC) at [6].

6      High Court Rules 2016, r 7.34(1); Architecture & Project Management Ltd v Windowmakers Ltd

[2015] NZHC 2268.

included the pre-trial case management of interlocutory applications to be filed, the minute that is subject to the review application was one made “in chambers”.

[20]   In order for the Scotchbrooks to have jurisdiction to review Associate Judge Lester’s case management directions, it is also necessary those directions amounted to an “order or decision” for the purposes of s 26P. In the context of interpreting the words “judgment, decree, or order” in s 66 of the Act, the Court of Appeal has stated:7

… rulings made either in the course of the hearing of the proceeding (using that term in a broad sense, including for example an adjournment application), or as part of the trial conduct or management process would not ordinarily be susceptible to interlocutory appeal. On the other hand rulings which have some substantive effect on rights and liabilities in issue would be. Obviously the boundary lines will not be cut and dried …

[21]   It was observed that there are numerous rulings which are simply procedural or administrative, not affecting rights or liabilities as such and where the rights immediately in issue will remain for substantive determination. Such rulings may be made in the pre-trial case management process or at trial. However, the court explained that interlocutory applications may, equally, substantially affect the shape of the hearing and so are amenable to appeal.8 A direction to file a memorandum or memoranda to enable the court to frame an appropriate order is not an “order or decision” under s 26P(1) and a right of review should not be available until an order in final form is made.9

[22]   In his minute dated 19 February 2021, the Associate Judge reiterated the timetabling and site access directions made in his minute dated 9 February 2021 remained in force and required compliance. Although there is a policy interest in facilitating and expediting proceedings by preventing the delay that would ensue by allowing every procedural direction to be reviewed, the directions as to site access and the potential of further evidence being filed as a result could be understood as having some substantive effect on the Scotchbrooks’ rights and liabilities. The point is not beyond doubt, but I did not hear argument suggesting the Associate Judge’s case

7      Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158, (1999) 13 PRNZ 599 (CA) at [36].

8 At [34].

9      Radioworks Ltd v Commissioner of Inland Revenue [2011] NZCA 129, (2011) 20 PRNZ 561 at

[6] and [9].

management directions were merely procedural or did not constitute an “order or decision” that was not amenable to review. I proceed on the basis that such jurisdiction is available.

Setting of close of pleading date

[23]   Despite their own application that he do so, the Scotchbrooks submit that Associate Judge Lester had no jurisdiction to fix a close of pleadings date because an earlier close of pleadings date had been set of 31 October 2018. That date was set by Associate Judge Osborne (as he then was) on 28 June 2018, when the original trial date of 10 June 2019 was confirmed. Pleadings from both sides were filed in 2018 in compliance with that date.

[24]   The Scotchbrooks argued that if Southern Response wanted a new close of pleadings date it needed to apply for revocation of the existing date. That submission rather overlooks the fact that it was the Scotchbrooks who sought the new close of pleadings date that was  set by consent by Associate Judge Lester.  Nevertheless,   Mr Goddard submitted the Scotchbrooks’ application for a close of pleadings date was made in error. He seeks to withdraw that application for the purpose of reviewing the Associate Judge’s direction.

[25]   Rule 7.6 of the High Court Rules 2016 provides that a judge must allocate a date for a proceeding’s hearing or trial when satisfied “that it can be readied for hearing or trial” — that is, if it is reasonably anticipated that it will be able to proceed to hearing or trial without the need for any significant amendment of the pleadings, significant interlocutory applications, or significant refinement of the issues in the proceeding.10 In addition to allocating a hearing or trial date, the judge must also fix a close of pleadings date.11 In the absence of so doing, r 7.6(4A) provides that a close of pleadings date is deemed to be the latter of the date that is 60 working days before the hearing or trial date allocated, and the date on which the hearing or trial date is allocated.

10     High Court Rules 2016, rr 7.6(3)(a)–(c).

11     Rule 7.6(4).

[26]The effect of setting a close of pleadings date is set out in r 7.7:

7.7      Steps after close of pleadings date restricted

(1)No statement of defence or amended pleading or affidavit may be filed, and no interlocutory application may be made or step taken, after the close of pleadings date without the leave of a Judge.

(2)Subclause (1) does not apply to—

(a)an application for leave under that subclause; or

(b)a pleading or an affidavit that merely brings up to date the information before the court; or

(c)an application for amendment of a defect or an error under rule 1.9.

[27]   In support of their argument that Associate Judge Lester had no jurisdiction to fix a second close of pleadings date of 31 March 2021, the Scotchbrooks placed reliance on a judgment of Associate Judge Smith in Banks v Farmer.12 In that case, an earlier close of pleadings date was revoked by the Court and a new date set. However, the question of whether a new close of pleadings date could be set without formally revoking the first close of pleadings date was not explicitly before Associate Judge Smith in that case. In making directions at the conclusion of a lengthy judgment, the Associate Judge stated:

[360] Certain directions for trial were given by Associate Judge Osborne on 18 June 2018, including the setting of a close of pleadings date of 1 October 2018. By minute dated 14 September 2018 I revoked the order relating to the close of pleadings date, and indicated that I would set a new close of pleadings date in this judgment, taking account of the various orders made.

[28]   I do not consider the language used by Associate Judge Smith when referring to having replaced one close of pleadings date with another is authority for the proposition that the Court has no jurisdiction to set a new close of pleadings date without expressly setting aside or revoking the earlier close of pleadings date. The High Court Rules do not impose such an explicit requirement and I consider it implicit in the setting of a new date by the Court that the new close of pleadings date supersedes the earlier date. That must be the Court’s intention in taking such a step, particularly where, as in this case, the proceedings have endured over a number of years and

12     Banks v Farmer [2019] NZHC 53.

previous fixtures have been vacated and, moreover, where the parties are agreed to the setting of a new date.

[29]   In Cato v Manaia Media Ltd, the trial date was vacated after a lengthy series of interlocutory applications and hearings that resulted in an appeal to the Court of Appeal.13 As a result of the pre-trial appeal, Hinton J found that the close of pleadings date had “necessarily fallen away”.14 The Judge observed:

[64] The Rules do not clearly provide for what happens where a case needs to be repleaded after the close of pleadings date because of a successful appeal of a pre-trial decision affecting the pleadings. Nor do they expressly provide for what happens where the trial date is vacated at the parties’ request, but not necessarily all timetabling directions predicated on that trial date. In this respect, I consider it salient that the purpose of fixing a close of pleadings date is to ensure that all pleadings are completed and interlocutory matters resolved a certain distance in advance of trial, so that the parties can get on with preparing for the hearing without disruption.15 Where the shapes of the parties’ cases remain unclarified well past the close of pleadings date because of an appeal from an interlocutory decision on pleadings, especially where a previously fixed trial date also has fallen away, there is no need, nor would it be appropriate, to prioritise trial preparation. Accordingly, applying the rules purposively,16 I consider that, in circumstances such as those, pleadings have effectively reopened.

[30]   While Hinton J’s observations largely centred on the effect of a pre-trial appeal on the close of pleadings date, her comments also extended to the situation where a trial date is vacated. The short point is that no question arises as to the trial court’s jurisdiction to set a new or revised close of pleadings date where prior events have rendered the earlier date obsolete.

[31]   In the present case, for the purposes of making case management directions for the new August 2021 trial date, both parties proceeded on the basis that the previous directions relating to the earlier trial dates were now redundant. Unsurprisingly, given the common position taken by the parties, Associate Judge Lester set a new close of pleadings date in his minute of 9 February 2021. No doubt if his attention had been drawn to there being an issue regarding his power to impose another close of pleadings

13     Cato v Manaia Media Ltd [2020] NZHC 1240.

14 At [62].

15     RHH Ltd v Anderson (No 3) [2018] NZHC 2045 at [9].

16     High Court Rules 2016, rr 1.2 and 1.6.

date he would have formally revoked the 2018 date. There can be no question that the Judge had such jurisdiction to do so or that the setting of the new date is to equal effect.

[32]   The 2018 close of pleadings date was set some three years ago. Since then two trial dates, one in June 2019 and another in March 2020, have been vacated. It is not necessary to go into the parties’ competing reasons why those fixtures were lost. As a result of these delays and the further delay before a new trial, the issue of the weatherproofing of the damaged house emerged in 2020. Again, it is not necessary to comment on the parties’ respective views as it relates to that issue. It is sufficient to note that, from approximately that time, the prospective affirmative defence of failure to mitigate entered the arena. The subsequent case management directions for trial made by the Associate Judge in February 2021 were largely based on those directions proposed by the parties against that background.

[33]   It is entirely unrealistic for the Scotchbrooks’ counsel to belatedly challenge the revised close of pleadings date when they not only agreed to its setting but advanced that step for the Associate Judge’s consideration. I am satisfied that in the circumstances the Associate Judge had the jurisdiction to set a new close of pleadings date and that in the absence of any argument or demur from the parties at the time of its setting the Associate Judge was able to do so without reference to the earlier obsolete 2018 date. The close of pleadings date is that set by Associate Judge Lester of 31 March 2021.

Application for leave to make further submissions

[34]   Shortly before release of this judgment, Mr Goddard filed a memorandum bringing to the Court’s attention the Court of Appeal’s decision of Yan v Mainzeal Group Ltd (in liq), and in particular its observations regarding close of pleadings dates.17 He sought leave to file an application to make further submissions, pursuant to the relevant practice note, and proposed a timetable for their filing and service that extended to 9 June 2021.18

17     Yan v Mainzeal Property and Construction Ltd (in liq) [2021] NZCA 99 at [493]–[494].

18 Practice Note [1968] NZLR 608.

[35]   I do not consider leave is warranted. The point Mr Goddard wishes to make in reliance on the judgment (that was available at the time of the hearing) is that pleading rules, including a close of pleadings date, are not mere technicalities. That is a matter that is well-known and understood, and there is no reason to consider Associate Judge Lester proceeded on any other basis. Similarly, the principle that it is not open to present a case beyond the scope of the pleadings without leave to amend is trite. As the practice note states, only in exceptional circumstances will leave be granted. The application does not meet that threshold.

Order for site visit

[36]   The Scotchbrooks seek orders quashing Associate Judge Lester’s order permitting a site visit. They argued that further “site visits” would result in up to some seven additional briefs of evidence being prepared by Southern Response to which they will have to respond and may be expected to have to engage additional experts. The concern was expressed this would amount to “a full round of expert reporting and a further Joint Experts’ Report”. The Scotchbrooks also complained that the request for site visits had not been the subject of a formal application and that, in the absence of such an application, the Court did not have all the relevant information to make an appropriate assessment. Objection was also taken to a particular individual attending the site, who was described as being neither a party, nor a representative of a party, nor an expert witness, and who therefore had no standing to attend. The Scotchbrooks submitted that Southern Response had failed to be transparent about the purpose and scope of the site visits and had sought to minimise the implications for the Scotchbrooks. A particular concern was voiced as to the number of people who would attend the site for the purpose of the inspection.

[37]   In response, Southern Response submitted the order for inspection was a standard procedural order commonly made in nearly every earthquake list proceeding as an interlocutory step and often as part of the trial itself. It submitted it would not be adducing “significant new evidence” which “radically altered its proposed repair methodology and construction sequence”, as asserted by the Scotchbrooks, as a result of the site visit. It noted  that  the  builders  engaged  by  Southern  Response,  Messrs Sinclair and Creighton, had last attended the property on 16 April and

6 June 2018 respectively. Because of the alleged intervening three years deterioration to the property, Southern Response submitted it was necessary that they do so again in order to carry out an up to date examination and revise costings. In addition to the builders, other proposed attendees were listed as being representatives from the two contractors involved in the repair strategy proposed by Southern Response, a representative from the insurer and one of its instructed lawyers.

[38]   Southern Response referred to the existing brief of evidence of Mr Creighton, who refers to a contractor able to undertake a process that enables repairs to be made to the foundation. That contractor’s representatives are required to attend the site in order to confirm the site conditions, provide an updated quote, and confirm that the proposed work can be undertaken. It was noted that the Scotchbrooks’ experts take issue in their reply briefs with a mechanical relevelling proposed by Southern Response’s experts. A further contractor provides an alternative relevelling methodology using what is described as a process of computer controlled grout relevelling. Southern Response seeks the attendance of a representative of the contractor who can provide this alternative relevelling method and of a consultant engineer to enable a revised quote to be obtained, and to obtain a producer statement. It was submitted this work is expected to result in “[m]inor revisions or updates” to the briefs of Mr Creighton and two other existing witnesses’ briefs who refer to this alternative relevelling methodology.

[39]   Southern Response submitted that it does not intend to produce “fresh evidence” following the site visit. Southern Response maintained it will suffer prejudice if it is unable to carry out a site visit to allow its experts to properly prepare their evidence in support of its defence to the claim.

[40]   There was no dispute that the Court has discretion to make an order for inspection of any property, for the purpose of enabling the proper determination of any matter in question in a proceeding.19 As remarked upon by the authors of McGechan

19     High Court Rules, r 9.34(1)(a).

on Procedure, where that threshold is made out, the court is likely to exercise its discretion in favour of an inspection.20

[41]   The essential objection to the site visit appears to rest on the concern that it will result in a great deal of further evidence and will place a burden on the Scotchbrooks that may jeopardise the August trial date. Given the procedural history of this matter, I accept those concerns are valid. The retention of the trial date must be considered a priority. However, I do not consider that concern impacts on the validity of the Associate Judge’s direction permitting a site visit to take place. Associate Judge Lester was aware of this issue. His observations and comments recorded in his minutes of 9 February and 19 February 2021 demonstrate these concerns.

[42]   Southern Response is on notice that it will not be acceptable for it to “open up entirely new areas of expert dispute and put the fixture at risk”. Southern Response has identified the weatherproofing issue and revisions of existing witnesses’ briefs of evidence that refer to the computer controlled grout relevelling methodology as being the reasons for the site visit. It has provided assurances that information obtained as  a result of the site visit will not result in a substantial amount of new evidence or place the August fixture in jeopardy. I accept that remains to be seen, but I do not consider that what may yet prove to be a legitimate concern, at this stage provides good reason for not allowing Southern Response access to the site.

[43]   The content and amount of additional and/or supplementary evidence that is filed by Southern Response remains subject to the Court’s oversight and supervision. The type of issues raised by the Scotchbrooks that are presently based on what they fear may result from the site visit can only be properly addressed on the basis of the timing of the additional evidence Southern Response may seek to introduce. By making an order for access to the site in the terms made, Associate Judge Lester was not predetermining those issues, nor was he purporting to limit the Court’s jurisdiction to assess and, if necessary, take steps to prevent the August trial date from being lost.

20     Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) [HR9.34.04].

Associate Judge Lester’s minute of 19 February, as I have previously remarked, references these concerns.

[44]   During the course of this long proceeding, there have been numerous site visits. Between 17 November 2016 and 2 September 2019 there were no less than 12 site visits. The stress and inconvenience to the Scotchbrooks from these visits is not to be underestimated. However, I am satisfied, as no doubt Associate Judge Lester was, that there are proper reasons why in the circumstances another visit is necessary. The number of people involved should be kept to a minimum as, indeed, was directed by the Associate Judge. It appears from the current information that it is not necessary for any solicitors to attend and that the single attendee representing Southern Response, given the Scotchbrooks’ objections to the named person who has connections with EQC, should be the alternative proposed staff member. As I read Southern  Response’s  notice  of  opposition,  apart  from  the  two   builders,   Messrs Creighton and Sinclair, it is anticipated that a representative of the computer controlled grout relevelling contractor will be present, together with the consultant engineer, a Mr Rupp, and representatives of the other contractor (Vac-U-Digga).

[45]   The Scotchbrooks’ application for review of the Associate Judge’s order permitting access to the site for the purposes set out at paragraphs [12] and [13] of Southern Response’s memorandum of 4 February 2021 is declined. The timetabling orders relating to such a visit as set out at [7] of Associate Judge Lester’s minute of  9 February 2021 are to apply as from the date of this judgment.21

In-person case management conference

[46]   A request was made for an in-person case management conference. After consideration of the concerns raised by the parties in their memoranda filed in the wake of his directions of 9 February 2021, this was declined by Associate Judge Lester in his minute of 19 February 2021.22 Southern Response does not oppose the Scotchbrooks’ request for an in-person case management conference. While it is likely that further directions will be required should the Scotchbrooks wish to file an

21     Scotchbrook v Southern Response Earthquake Services Ltd, above n 1.

22     Scotchbrook v Southern Response Earthquake Services Ltd, above n 2.

interlocutory application in response to Southern Response’s amended pleading, it is not presently apparent what further case management orders are required, at least at this stage.

[47]   On the basis of the information presently before me, I do not therefore consider it necessary to make such a direction. It remains open, however, to the parties to apply for such a conference should they think it necessary, but they would need to articulate the purpose of any such conference and the directions and orders being sought.

[48]   Before leaving this topic, I observe that it is not entirely clear to me what the ambit of an in-person case management conference is envisaged to be, or what is sought to be achieved by convening such a conference, as so described. There is no impediment to counsel’s clients attending a conference, but the expectation is that, where individuals are legally represented, counsel are engaged to speak on their client’s behalf and that they have instructions to do so. This is particularly the case in relation to the type of procedural matters with which such a conference would be concerned, as opposed to, for example, a judicial settlement conference. That said, it remains a matter for the presiding Judge as to whom they consider it is appropriate to hear from or to whom they are willing to provide the opportunity to speak having regard to the issues before them.

Leave to appeal

[49]   Somewhat unusually, the Scotchbrooks’ application  to  review  the  Associate Judge’s decision was accompanied by an application for leave to appeal to the Court of Appeal, pursuant to s 26P(1AA) of the Judicature Act 1908. In the absence of there being any “determination” of this Court from which to seek leave to appeal at the time the application was made, the application for leave is premature. Any such application for leave must relate to a decision made by this Court and be informed by the reasons set out in the accompanying judgment. Until that judgment is delivered the test for leave cannot be properly assessed.

Costs

[50]   The Scotchbrooks have been unsuccessful in their application to review the Associate Judge’s decision. Costs, in the ordinary way, follow the event. Southern Response as the successful party are entitled to costs on a 2B basis and an award is made on the basis of the details set out in the schedule attached to its submissions.

Solicitors:

Clark Boyce, Christchurch Wynn Williams, Christchurch