Vero Liability Insurance Ltd v Symphony Group Ltd - [2008] NZCA 419

IN THE COURT OF APPEAL OF NEW ZEALAND
CA132/08
[2008] NZCA 419
BETWEENVERO LIABILITY INSURANCE LTD

Appellant

ANDSYMPHONY GROUP LTD, SYMPHONY PROJECTS LTD, WAIMARIE MANAGEMENT LTD AND GLANVILLE INVESTMENTS LTD

Respondents

Hearing:18 September 2008

Court:Arnold, Potter and Harrison JJ
Counsel:S M Hunter for Appellant

J G Miles QC and SA Grant for Respondents

Judgment:23 October 2008 at 10.30 am

JUDGMENT OF THE COURT

AVero’s appeal against the decision of the High Court at Auckland on 3 March 2008 is allowed.
BSymphony’s third party notice and statement of claim against Vero dated 22 December 2006 are struck out.
CSymphony must pay Vero costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT

(Given by Harrison J)
Introduction
[1]       Vero Liability Insurance Ltd appeals against a decision of Associate Judge Robinson, dismissing its application to strike out a claim against it by Symphony Group Ltd and associated companies (by way of a third party notice) or alternatively to enter summary judgment: HC AK CIV 2004-404-5225 3 March 2008.
[2]       The issues raised on this appeal are, first, whether or not Symphony’s third party claim against Vero under a policy of indemnity insurance discloses an arguable cause of action and, second, if so, whether or not an exclusion clause applies in any event.
Jurisdiction
[3]       Although no party raised it, there is a preliminary issue as to this Court’s jurisdiction. It arises because, in the one application and on the same grounds, Vero applied to strike out Symphony’s claim against it and, in the alternative, for summary judgment on the claim. Inevitably, the Associate Judge dealt with both aspects together. This creates a difficulty for us. Associate Judges’ decisions on strike applications are not appealable to this Court but are dealt with on review by the High Court, whereas their decisions on summary judgment applications are appealable to this Court (ss 26J and 26P of the Judicature Act 1908 and rr 61C, 61D and 251(1) and (2) of the High Court Rules). On the face of it, then, we have no jurisdiction in relation to the Associate Judge’s decision on the strike out application: see New Zealand Defence Force v Berryman [2008] NZCA 392 at [4].
[4]       However, as we have said, the underlying grounds of the summary judgment and strike out applications were identical and the Associate Judge dealt with them together. We are properly seized of the appeal against his refusal to grant summary judgment. On that appeal we “may give any judgment and make any order which ought to have been given or made, and may make any further or other orders that the case may require” (r 48(4) of the Court of Appeal (Civil) Rules 2005). In these circumstances, and because no party has taken any issue about it, we propose to address the Associate Judge’s refusal to strike out as well. (Further, we are, of course, able to exercise any of the powers of a High Court judge (s 57(4)…

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: [2008] NZCA 419
Decision Date: 23 October 2008

CaseChat Overview and Summary

Vero Liability Insurance Ltd appealed against the High Court's decision dismissing its application to strike out Symphony Group Ltd's third party notice and statement of claim or, in the alternative, to enter summary judgment. The court considered two issues: whether Symphony's third party claim against Vero disclosed an arguable cause of action and whether an exclusion clause applied in any event. The court concluded that Symphony's claim did not disclose an arguable cause of action against Vero under any of the four grounds provided by rule 75(1). Vero's appeal against the High Court's decision was allowed, and Symphony's third party notice and statement of claim against Vero, dated 22 December 2006, were struck out. Symphony must pay Vero costs for a standard appeal on a band A basis and usual disbursements.

Orders