Tillemans v Tillemans - [2020] NZHC 1907

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-258

[2020] NZHC 1907

BETWEEN
STEPHEN COGLE AND ALEXIS COGLE

Plaintiffs

AND

IAG NEW ZEALAND LIMITED

Defendant

Hearing:
30 July 2020

(By telephone conference)

Counsel:

A M S Williams assisting the Plaintiffs

R W Raymond QC and V Ma for Defendant

Judgment:

31 July 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application for adjournment of hearing)

This judgment was delivered by me on31 July 2020 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 31 July 2020

COGLE v IAG NEW ZEALAND LIMITED [2020] NZHC 1907 [31 July 2020]

[1] On 21 November 2019, a direction was made that the positive defence in this proceeding be determined before Mr and Mrs Cogle’s claim.1

[2] On 30 May 2020, the Court advised the parties that the 10 days of hearing time required to determine the positive defence, was available commencing 7 September 2020. Mr and Mrs Cogle opposed that date being allocated. That issue was the subject of a telephone conference on 17 June 2020. Following adjustments to the timetable for the exchange of evidence, which shortened the time IAG New Zealand Limited (IAG) had for its evidence, the fixture date was confirmed. IAG’s evidence was due on 29 June 2020 and it says all of its evidence was filed on or before that date. Mr and Mrs Cogle say one brief was not served until 3 July 2020.

[3] The issues Mr and Mrs Cogle have to reply to in the positive defence have been well signalled by IAG from early on. IAG say it was entitled to declare invalid Mr and Mrs Cogle’s insurance policy under which they claimed for earthquake damage to their property because of fraud or dishonesty by Mr and Mrs Cogle. Mr and Mrs Cogle’s solicitor in their memorandum filed in opposition to the setting down, anticipated IAG would be calling eight to 10 witnesses, including one expert. Such was recorded in the 21 November 2019 judgment as was the 10 day hearing time estimate. As it happens, IAG filed nine briefs, including one expert.

On 14 July 2020, a notice of change of address for service dated 10 July 2020 was filed by Mr and Mrs Cogle which showed they were self-represented. Mr and Mrs Cogle’s previous solicitors have advised the Court that on 30 June 2020 they advised Mr and Mrs Cogle they could no longer accept instructions “… unless the firms engagement terms were met to pay outstanding fee accounts” and arrangements were made for future fees, in particular, the September hearing.

1 Cogle v IAG New Zealand Limited [2019] NZHC 3049.

[4] The notice by which Mr and Mrs Cogle advised they were acting for themselves, referred to them seeking legal aid which prompted Mr Raymond QC, counsel for IAG, on 21 July 2020, to seek a telephone conference to confirm that arrangements for the September 2020…

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 Tillemans v Tillemans

Details

AGLC: Tillemans v Tillemans [2020] NZHC 1907
Case: [2020] NZHC 1907
Decision Date: 31 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tillemans v Tillemans was heard by Associate Judge Lester, with the primary dispute between the plaintiffs, Stephen Cogle and Alexis Cogle, and the defendant, IAG New Zealand Limited. The plaintiffs claimed for earthquake damage to their property, which IAG contested by arguing that the insurance policy was rendered invalid due to fraud or dishonesty by the plaintiffs. The central legal issue was whether the hearing of the positive defence, scheduled for 7 September 2020, should be adjourned. The plaintiffs sought an adjournment on the grounds of being unrepresented and unable to fund legal representation, necessitating the application for legal aid.

The court considered the application for adjournment under Rule 10.2 of the High Court Rules 2016, which allows for the postponement of a trial if it is in the interests of justice. Associate Judge Lester noted that the interests of not just the immediate parties, but also those waiting in the queue for a hearing, must be considered. The plaintiffs' application was based on their inability to fund representation and their intention to seek legal aid. IAG opposed the adjournment, noting that it had met its obligations and was ready to proceed with the hearing.

In deciding whether to adjourn the hearing, the court weighed the interests of justice, the significant impact on the plaintiffs if the positive defence succeeded, and the availability of legal aid. Despite the inadequate medical evidence provided by the plaintiffs, the court granted the adjournment, acknowledging the practical difficulties of self-representation and the potential complications in the upcoming hearing. The matter was subsequently adjourned to 17 May 2021 for 10 days, contingent on the outcome of the legal aid application. The court also ordered the plaintiffs to bear the wasted costs of the adjourned hearing and the costs of the adjournment application itself, reserving the question of the amount of these costs.

Orders