Tower Insurance Ltd v Kilduff

Tower Insurance Limited appealed against a costs decision of the High Court in relation to proceedings brought by the respondents for damage to their property caused by the Christchurch earthquakes. Tower argued that the High Court erred in concluding that the respondents were the successful party, in its assessment of Tower’s Calderbank offers, and in its quantification of the award. The Court of Appeal held that the appeal should be dismissed. The Court found that the High Court was correct in concluding that the respondents were the substantially successful party. The Court held that the High Court erred in its assessment of Tower’s Calderbank offers by taking into account all of the costs and disbursements incurred up to the conclusion of the trial, and post trial, in respect of interest. However, the Court found that Tower’s appeal in this respect failed because Tower had not demonstrated that its Calderbank offers exceeded the sum of the repair costs, plus that portion of the Court’s costs award that related to the costs and disbursements incurred prior to the date of each Calderbank offer. Finally, the Court found that the High Court was not plainly wrong in its quantification of the award, and that the Court of Appeal saw no basis to interfere with the exercise of the High Court’s discretion.