Sisson v IAG New Zealand Ltd - [2014] NZHC 616

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-000989 [2014] NZHC 616

BETWEEN THERESE ANNE SISSON Plaintiff

ANDIAG NEW ZEALAND LIMITED Defendant

Submissions received:

20 March 2014

Appearances: G D R Shand for Plaintiff/Respondent
R Coltman for Defendant/Applicant

Judgment: 31 March 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on interlocutory applications

Introduction

[1] This judgment relates to three interlocutory applications made by the defendant (IAG). The substantive proceeding involves insurance claims of the plaintiff (Ms Sisson) following substantial damage caused to a Colombo Street property caused by the Christchurch earthquakes of 4 September 2010 and 22
February 2011.

[2] The interlocutory applications which I will deal with in this order are for: (a) further and better discovery;
(b) further particulars of claim;

(c) security for costs.

SISSON v IAG NEW ZEALAND LIMITED [2014] NZHC 616 [31 March 2014]

Background

The Colombo Street Property

[3] Until 2007 the Colombo Street property was in the name of David Hampton, Ms Sisson’s former husband. In 2005 the Commissioner of Inland Revenue (Commissioner), as a result of claims for taxation liabilities against various entities associated with Mr Hampton and Ms Sisson (including Chesterfields Preschools Ltd), obtained Mareva injunctions (the freezing orders) against the Colombo Street
property, and others.1

[4] In 2007 the Colombo Street property was transferred into the name of Ms Sisson to allow refinancing. In exchange Ms Sisson provided an undertaking (the text of which is not in evidence). At the same time the freezing orders were set aside.2 However, in 2008, upon concerns as to Ms Sisson’s compliance with her undertaking, the Court imposed fresh freezing orders and left her undertaking in place.3 The orders prevented Ms Sisson and her co-plaintiffs from any further dealings with the properties, including Colombo Street. Fogarty J recorded that he intended the word “dealings” to be understood in its broadest sense.4

The insurance contracts

[5] Following the transfer of the property to her, Ms Sisson had the property insured with IAG. The two relevant periods of insurance are 22 January 2010 to 22
January 2011 and 22 January 2011 to 22 January 2012.

[6] During the term of those periods of insurance the earthquakes of 4 September

2010 (the September earthquake) and 22 February 2011 (the February earthquake)
inflicted damage upon the Colombo Street property. One earthquake occurred during the currency of each policy.

1      The freezing orders were granted in Chesterfield Preschools Ltd v Commissioner of Inland
Revenue (2005) 22 NZTC 19,500.
2      Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-
2004-409-1596, 31 October 2007.
3      Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-
2008-409-722, 28 August 2008.
4      Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-
2008-409-722, 28 August 2008 at [7].

The loss claimed

[7] Ms Sisson claims she suffered the following losses from the earthquakes:

(a) The September earthquake: $465, 750 which consists of an expert’s estimate of $517,500 to repair the property, less a ten per cent allowance…

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.

Keep reading for free

Create a free CaseChat account to read Sisson v IAG New Zealand Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 616
Decision Date: 31 March 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Osborne heard three interlocutory applications by IAG New Zealand Ltd (IAG) against Therese Anne Sisson (Ms Sisson) in relation to insurance claims following substantial damage to a Christchurch property caused by the 2010 and 2011 earthquakes. IAG sought further and better particulars of Ms Sisson's representative capacity, further and better discovery, and security for costs. The substantive proceeding involved claims for insurance losses from the earthquakes to the Colombo Street property, which was owned by Ms Sisson but subject to freezing orders due to taxation liabilities. The insurance policies were in place during the earthquakes, but Ms Sisson had not received payment for the September 2010 loss and only partial payment for the February 2011 loss. The court found that further particulars of Ms Sisson's trusteeship were necessary to identify the nature of the trust and the circumstances of its creation. Discovery of documents relating to the trusteeship, the ability to reinstate the property, and the demolition of the building was ordered, but discovery of documents relating to the demolition was refused. The court exercised its discretion to order security for costs, considering the threshold test was met due to Ms Sisson's bankruptcy and the freezing orders on the property. The security amount was set at $16,915 for a one-day trial, with the possibility of additional security if a longer trial was needed. Costs were to follow the event on a 2B basis.

Orders