Sleight v Beckia Holdings Limited - [2020] NZHC 571

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-818

[2020] NZHC 571

UNDER THE Declaratory Judgments Act 1908 and Consumer Guarantees Act 1993

BETWEEN

JOAN MARGARET FRASER SLEIGHT AND ALAN LEITHEAD SLEIGHT

Plaintiffs

AND

BECKIA HOLDINGS LIMITED (in

liquidation) (formerly FR 2012 Limited) First Defendant

AND

ORANGE H MANAGEMENT LIMITED

(in receivership and liquidation) (formerly Hawkins Management Limited)

Second Defendant

AND

IAG NEW ZEALAND LIMITED

Third Defendant

AND

QBE INSURANCE (AUSTRALIA) LIMITED

Fourth Defendant

Hearing: 16 March 2020

Appearances:

M J Borcoski for Plaintiffs

No appearance for First Defendant No appearance for Second Defendant

N S Gedye QC and O V Collette-Moxon for Third Defendant D H McLellan QC for Fourth Defendant

Judgment:

20 March 2020

Reissued:

20 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 20 March 2020 at 9.30am

pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar / 20 March 2020

SLEIGHT v BECKIA HOLDINGS LIMITED (in liq) & ORS [2020] NZHC 571 [20 March 2020]

[1] The plaintiff by memorandum, dated 26 February 2020, applied to transfer this proceeding to the Canterbury Earthquakes Insurance Tribunal (“the Tribunal”).1 The third defendant, IAG New Zealand Ltd (“IAG”), opposes the transfer. The fourth defendant, QBE Insurance (Australia) Ltd (“QBE”), will abide the decision of the Court. The first and second defendants, being in liquidation, took no part.

[2] Whata J in a Minute of 6 March 2020 set down the opposed application for an in-person hearing. Opposed applications to transfer have been dealt with by in-person hearings or by telephone conference after the submissions have been filed.

Jurisdiction

[3] Section 8(1) of the Canterbury Earthquakes Insurance Tribunal Act 2019 (“the Act”) provides:

(1)This Act applies to disputes between policyholders and insurers about insurance claims for physical loss or damage arising from the Canterbury earthquakes to a residential building or residential property.

[4] Section 16 of the Act provides for a transfer of proceedings from a court to the Tribunal as follows:

16 Claim brought by transfer of proceedings from court

(1)If a person who is a policyholder or an insured person (or both) is a plaintiff in court proceedings relating to an insurance claim in dispute, a Judge may, on the application of that person or on the Judge’s own motion, order that the proceedings be transferred to the tribunal.

(2)An order to transfer proceedings may be made under subsection (1) only if—

(a)the proceedings meet the eligibility criteria for a claim under section 9 (however, the proceedings may also include additional parties to those referred to in section 8, but may not include a class action—see clause 6(2) of Schedule 2); and

1 2019 Practice Note: Canterbury Earthquakes Insurance Tribunal Act 2019 Arrangements for transfer of proceedings HCPN 2019/2 (civ) at cl 2, provides that an application to transfer a proceeding to the Canterbury Earthquake Tribunal may be made by memorandum.

(b)the other party or parties to the proceedings have…

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.

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Details

Case: [2020] NZHC 571
Decision Date: 20 March 2020

CaseChat Overview and Summary

In the case of Sleight v Beckia Holdings Limited, the plaintiffs, Joan Margaret Fraser Sleight and Alan Leithead Sleight, sought a transfer of their proceeding from the High Court of New Zealand to the Canterbury Earthquakes Insurance Tribunal. The defendants, Beckia Holdings Limited, Orange H Management Limited, IAG New Zealand Limited, and QBE Insurance (Australia) Limited, opposed the transfer. The central issue before the court was whether the transfer of the proceeding to the Tribunal was in the interests of justice. The plaintiffs argued that the Tribunal's informal and flexible procedures would be less stressful for them, particularly given their advanced age. They also contended that the Tribunal could handle complex legal issues and that the transfer would not result in substantial delay. The defendants, however, argued that the proceeding involved complex and novel issues that had not been previously tested in court. They submitted that the proceeding had deviated significantly from a standard earthquake claim and that the Tribunal might not be the appropriate forum to address the extensive legal issues.

Associate Judge Lester considered the purpose of the Canterbury Earthquakes Insurance Tribunal Act 2019, which was to provide fair, speedy, flexible, and cost-effective services for resolving insurance claims arising from the Canterbury earthquakes. The Judge acknowledged the potential benefits of the Tribunal's procedures but also recognised the risks of delay and complexity associated with transferring the proceeding. The Judge concluded that the proceeding involved extensive and complex test case issues that had not been before a New Zealand court. Other litigants had structured their proceedings in part on the basis that this claim would be heard in June 2020, and the Judge believed that other affected interests should be considered when determining the interests of justice. On balance, the Judge found that the transfer to the Tribunal was not in the interests of justice, primarily due to the loss of a firm fixture and the potential for further delays and uncertainties in the Tribunal. The application to transfer the proceeding to the Canterbury Earthquakes Insurance Tribunal was dismissed.

Orders