Taylor v Asteron Life Ltd - [2019] NZHC 1489

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2015-485-1032

[2019] NZHC 1489

BETWEEN
PETER JAMES TAYLOR

Plaintiff

AND

ASTERON LIFE LIMITED

Defendant

Hearing: On the papers

Counsel:

A C Beck for the Plaintiff

C M Meechan QC and A Borchardt for the Defendant

Judgment:

28 June 2019

JUDGMENT OF COOKE J

(Interest and costs)

[1] In my judgment of 7 May 2019 I reserved the question of interest to be payable on the defendant’s successful counterclaim, and the question of costs.1 Memoranda have been filed by the parties on those issues.

Interest

[2] The defendant has succeeded in its counterclaim for $371,286.70. I deferred the award of interest on this amount as the total amount paid to the plaintiff over time changed because of the ongoing insurance payments, so the interest calculation was complicated. The defendant has now set out a schedule calculating the interest that is payable (schedule A to counsel memorandum dated 21 May 2019). The schedule calculation itself is not disputed, but the plaintiff argues that the rate of five per cent should not be used as the applicable rate under s 87 of the Judicature Act 1908.

1 Taylor v Asteron Life Limited [2019] NZHC 978 at [125]–[126].

TAYLOR v ASTERON LIFE LIMITED [2019] NZHC 1489 [28 June 2019]

[3] The plaintiff raises an issue concerning delays with the proceeding, as well as overpayment of premiums. I see no significance in the point about delay, and in any event the plaintiff’s stance on disclosing information to the defendant was also a cause of delay in this matter coming to Court. In terms of premium payments I accept the defendant’s point that I have no evidence about that.

[4] The plaintiff refers to the calculation that can now be undertaken since the Interest of Money Claims Act 2016, and puts forward an alternative calculation of a reasonable interest component leading to an award interest of $109,906.93 rather than
$128,153.66. I accept the defendant’s interest calculation, however. This is a case where the plaintiff has received payments to which he was not entitled. He has had the advantage of the use of that money. Requiring repayment at a five per cent interest rate does not involve over compensation. Accordingly I accept that the defendant is entitled to interest in the amount of $128,153.66 to the date of judgment.

Costs

[5] The plaintiff failed in his claim, and the defendant succeeded on its counterclaim. The defendant claims costs generally on a 2B basis, but there are particular issues in dispute.

Discovery

[6] A claim in costs for inspection of the plaintiff’s discovery is sought on a 2C basis rather than a 2B basis. The defendant says that it was a very extensive inspection exercise, and that Mr Taylor did not initially meet his discovery obligations. In response the plaintiff says that discovery was a “herculean task” as the defendant had effectively sought the entire documentary records of the plaintiff’s…

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.

Continue reading Taylor v Asteron Life Ltd

Details

AGLC: Taylor v Asteron Life Ltd [2019] NZHC 1489
Case: [2019] NZHC 1489
Decision Date: 28 June 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Peter James Taylor sued Asteron Life Limited over a life insurance policy. Asteron Life Limited successfully counterclaimed against Taylor for $371,286.70. The court reserved the question of interest payable on the defendant's successful counterclaim and the question of costs. The defendant calculated the interest payable, but the plaintiff argued that the rate of five per cent should not be used. The court accepted the defendant's interest calculation and awarded $128,153.66 as interest.

The plaintiff raised issues concerning delays with the proceeding and overpayment of premiums. The court saw no significance in the point about delay, and in any event the plaintiff's stance on disclosing information to the defendant was also a cause of delay in this matter coming to Court. The court accepted the defendant's point that there was no evidence about overpayment of premiums. The plaintiff referred to the calculation that can now be undertaken since the Interest of Money Claims Act 2016, and put forward an alternative calculation of a reasonable interest component. The court accepted the defendant's interest calculation.

The plaintiff failed in his claim, and the defendant succeeded on its counterclaim. The defendant claimed costs generally on a 2B basis, but there were particular issues in dispute. The plaintiff argued that the defendant's claim in costs for inspection of the plaintiff's discovery should be calculated on a 2B basis rather than a 2C basis. The court accepted that costs for this step should be calculated on a 2C basis. The defendant also sought a 15 per cent uplift on its costs award under r 14.6(3)(b) on the basis that the plaintiff made unmeritorious claims. The court accepted the defendant's claim for an uplift.

The plaintiff did not accept some of the defendant's disbursements claims on the basis that they did not meet the requirements for approval. The court concluded that the costs of the expert accountancy evidence were recoverable, and that the amount claimed for the private investigator was reasonably necessary for the conduct of the proceedings. The court also disallowed the accommodation expenses for certain witnesses. The plaintiff disputed an allowance for costs of two interlocutory applications, but the court allowed the claim of costs of the interlocutory applications. The plaintiff also contested an amount of $9,076.50 being legal fees incurred by IAG in complying with the third party discovery order. The court accepted that the fee was incurred.

The plaintiff contended that there should be a reduction in the defendant's cost award because the defendant contributed unnecessarily to the time that was spent commencing the proceeding by taking unnecessary steps. The court rejected these arguments and accepted the plaintiff's point that Mr Strong had produced a 290 page brief analysing the material which was largely inadmissible, but no costs were claimed in relation to his time. The underlying documents themselves were admissible and were used extensively in the cross-examination of Mr Taylor.

The court ordered that Asteron Life Limited is entitled to interest in the amount of $128,153.66 to the date of judgment. The court also ordered that the defendant's claim for costs, including an uplift and disbursements, as well as costs of interlocutory applications and third party discovery, is allowed. The court rejected the plaintiff's contention for a reduction in the defendant's cost award.

Orders