Thomson v Earthquake Commission - [2015] NZHC 1037

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001740 [2015] NZHC 1037

BETWEEN
KATHERINE ROSE THOMSON

Plaintiff

AND

THE EARTHQUAKE COMMISSION First Defendant

AND

IAG NEW ZEALAND LIMITED Second Defendant

Hearing: 15 May 2015 (On the papers)

Appearances:

A Ferguson and J Morriss for Plaintiff
R Hargreaves for Defendant

Judgment:

15 May 2015

JUDGMENT OF DUNNINGHAM J

[1] This is an application for costs arising as a consequence of the plaintiff filing new evidence shortly before the scheduled hearing, and effectively doubling the quantum of her claim, thereby necessitating the adjournment of the hearing to give the second defendant an opportunity to respond.

[2] In deciding to adjourn the hearing I noted:

(a) The Christchurch earthquake list is subject to a case management procedure which is designed to benefit both plaintiffs and defendants alike. It is aimed at identifying the expert evidence which is relied on to support the basis and quantum of any claim, and to ensure it is exchanged at an early stage so that the parties can determine areas of agreement and focus their evidence on those areas of disagreement
which may have a bearing on the outcome of the case.

THOMSON v THE EARTHQUAKE COMMISSION AND ANOR [2015] NZHC 1037 [15 May 2015]

(b)It is abundantly clear that the directions of Wylie J and Kós J were made with this end in mind and yet the timetabling directions have been breached by the plaintiff on multiple occasions. It is not in the interests of justice to provide evidence which effectively doubles the quantum of the claim less than 10 working days before the outset of the hearing. It is clear that the defendant is prejudiced, particularly when its own expert quantity surveyor will not have time in the two working days between his return from leave and the commencement of the trial, to consider and respond to the doubling of the plaintiff ’s claim.

(c) In deciding how to proceed I must have regard to the potential prejudice to either party. I accept that if I refuse to allow this evidence in, the plaintiff may be prejudiced, but equally the defendant is prejudiced if it is not afforded sufficient time to respond to this evidence if admitted.

[3] I concluded that, unless the plaintiff withdrew the evidence, then in order to balance the interests of the plaintiff against the interests of the defendant I had to adjourn the hearing, despite the waste of judicial resources this represented. However, I stated that the defendant was entitled to any wasted costs it had incurred as a result of the late filing of this evidence and they were to be determined independently of the costs of the substantive application.

[4] The second defendant now seeks a total of $18,203.73 in costs and disbursements. These are sought on the basis that the adjournment meant it would need to duplicate its pre-trial preparation, and that of its engineering and mould expert witnesses, once a new trial…

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: [2015] NZHC 1037
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Thomson v The Earthquake Commission and Another was heard, addressing an application for costs arising from the plaintiff filing new evidence shortly before the scheduled hearing. This filing effectively doubled the quantum of the plaintiff's claim, leading to the necessity of adjourning the hearing to allow the second defendant to respond. The court was tasked with determining whether the plaintiff should bear the costs incurred by the defendant due to the late filing of evidence.

The legal issues involved the principles governing the award of wasted costs and the balance between compensating the non-defaulting party and sanctioning the party in default for breaching case management orders. The court had to decide whether the plaintiff's actions warranted a sanction and if so, the appropriate amount of costs to be awarded to the defendant. The court referenced established legal precedents and considered the potential prejudice to both parties.

In its reasoning, the court held that the jurisdiction to award wasted costs is well-established, serving both to compensate the non-defaulting party and to impose a sanction on the defaulting party. The court awarded the second defendant a sum of $15,000 to cover the wasted costs and disbursements, after taking into account the plaintiff's submissions and the 50% reduction applied by the defendant on its pre-trial preparation costs. The court emphasized the importance of adhering to case management directions to avoid such wastage of judicial and court resources.

The final orders of the court included the award of $15,000 to the second defendant to cover the wasted costs and disbursements. This decision underscored the need for parties to comply with case management orders and the court's authority to impose sanctions for non-compliance.

Orders