Van Limberg v Earthquake Commission - [2014] NZHC 502

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHRUCH REGISTRY

CIV-2013-409-1245 [2014] NZHC 502

BETWEEN WILCO VAN LIMBERG Plaintiff

ANDTHE EARTHQUAKE COMMISSION First Defendant

TOWER INSURANCE LIMITED Second Defendant

In Chambers: On papers
At Wellington

Counsel: G D R Shand for Plaintiff
J A Knight for First Defendant

Judgment: 18 March 2014

JUDGMENT OF THE HON JUSTICE KÓS (Costs)

[1] On 24 June 2013 Mr van Limberg issued proceedings against EQC and Tower Insurance. The claims related to damage caused by the February 2011 earthquake to Mr van Limberg’s house.

[2] The claim against EQC was brought on the basis that it was liable to pay Mr van Limberg $113,850 pursuant to ss 18, 27 and 29 of the Earthquake Commission Act 1993 (the Act).

[3] In its statement of defence dated 31 July 2013, EQC denied such liability.

[4] An issues conference took place before me on 22 August 2013. In it, EQC

advised that it had not completed its determination of Mr van Limberg’s entitlement.

But its impression was that the natural disaster damage would exceed the EQC cover

VAN LIMBERG v THE EARTHQUAKE COMMISSION [2014] NZHC 502 [18 March 2014]

under the Act. Counsel for EQC therefore expected that it would settle the claim against it by paying the full amount Mr van Limberg was entitled to under s 18. My minute noted:

The claim against EQC will then fall away and the proceedings against it should be discontinued at that point.

[5] Of course, the claim against Tower Insurance would continue.

[6] Four days later, on 26 August 2013, EQC paid Mr van Limberg $84,375. The sum paid was less than the $113,850 claimed because the parties accepted that the plaintiff’s dwelling was insured under s 18(1)(b) of the Act for a specified EQC sum of less than $100,000. The sum paid is therefore the full sum Mr van Limberg was entitled to.

[7] Mr van Limberg has not discontinued his proceeding against EQC.

[8] Now by memorandum (rather than application) dated 24 February 2014, Mr van Limberg seeks an award of costs and disbursements on a 2B basis of
$9,488.20 against EQC.

[9] He also seeks interest of 5 per cent per annum from 1 July 2011 to 26 August

2013. The logic for that claim is an assertion in the memorandum that, under s 29 of the Act, EQC is obliged to make payments as soon as reasonably practical. And that, for the February 2011 earthquake, it was reasonably practicable to pay on 1 July
2011.

Jurisdiction to award interest

[10] The Court’s statutory jurisdiction to award interest under s 87 of the Judicature Act 1908 is dependent on the giving of a judgment. No judgment has been given here. Dealing with a similar provision in England, Lord Denning said the
following in Jefford v Gee:1

1 Jefford v Gee [1972] 2 QB 130 (CA) at 150.

If the plaintiff takes the money out of Court in satisfaction of the claim, that is the…

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 Van Limberg v Earthquake Commission

Details

AGLC: Van Limberg v Earthquake Commission [2014] NZHC 502
Case: [2014] NZHC 502
Decision Date: 18 March 2014

CaseChat Overview and Summary

The High Court of New Zealand was presented with a case involving Mr. Wilco van Limberg, who filed a claim against the Earthquake Commission (EQC) and Tower Insurance Limited. The claim was related to damages caused by the February 2011 earthquake to Mr. van Limberg's house. Mr. van Limberg sought to recover $113,850 from EQC under sections 18, 27, and 29 of the Earthquake Commission Act 1993. EQC denied liability and maintained that the natural disaster damage would exceed the EQC cover under the Act. EQC eventually paid Mr. van Limberg $84,375, which was less than the claimed amount due to the acceptance that the plaintiff’s dwelling was insured under section 18(1)(b) of the Act for a specified EQC sum of less than $100,000. Despite the payment, Mr. van Limberg did not discontinue the proceedings against EQC and subsequently sought an award of costs and interest.

The legal issues that the court had to address were whether the court had jurisdiction to award interest under section 87 of the Judicature Act 1908, given that no judgment had been given, and whether costs could be awarded at that point in the proceedings. The court examined if costs were appropriate given that the proceedings had not concluded and whether the full amount claimed had been paid. The court also needed to determine if it was appropriate to award costs at that stage of the proceedings, especially considering that the full amount claimed had not been paid.

In its judgment, the court found that no interest was payable as no judgment had been given, following the reasoning in Jefford v Gee. The court further explained that costs are generally awarded only when the proceeding has been concluded, either by judgment or discontinuance. The court declined the application for costs, noting that the full amount claimed had not been paid and that EQC was entitled to resist the claim for $113,850. The court did not find it appropriate to award costs at that stage, without prejudice to reconsidering the issue upon discontinuance.

The court's final orders were that no interest was payable and the application for costs was declined. The court left open the possibility of reconsidering the issue of costs upon the discontinuance of the proceedings against EQC.

Orders