Legal Research
Cases
Yarrall v Earthquake Commission

Yarrall v Earthquake Commission

Case [2016] NZCA 517 27 October 2016

Limitation Periods

Jurisdiction

Res Judicata

Admissibility of Evidence

Costs

Civil Litigation & Procedure

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA396/2015
[2016] NZCA 517

BETWEEN	P J YARRALL AND A STEPHENS Appellants
AND	THE EARTHQUAKE COMMISSION Respondent

Hearing:	3 August 2016
Court:	Wild, Mallon and Williams JJ
Counsel:	A J McKenzie and D G Beck for Appellants N S Wood and J A Knight for Respondent
Judgment:	27 October 2016 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the respondent two-thirds of the respondent’s costs of this appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

This appeal is against a costs judgment given by Wylie J in the High Court at Christchurch on 25 June 2015.[1] The appellants had discontinued a proceeding they had brought against the Earthquake Commission (EQC) and the Judge ordered them to pay EQC costs of $23,482, plus disbursements.[2] The appellants say the Judge erred in awarding costs to EQC and submit costs should lie where they fall.

Background and judgment under appeal

[1]Yarrall v Earthquake Commission [2015] NZHC 1451.

[2]At [29].

The appellants’ house in Christchurch suffered damage as a result of the Canterbury earthquakes. They claimed against EQC for this damage. EQC apportioned 10 per cent of the damage to the 4 September 2010 earthquake and 90 per cent to the second earthquake on 22 February 2011. It did not apportion any damage to the third earthquake on 13 June 2011. By the time EQC had made its apportionment decision, the appellants’ private insurer had already accepted that a complete rebuild was required.
In the proceeding they brought in August 2013, the appellants sought judicial review of EQC’s apportionment decision, essentially on the ground that EQC should have made an additional payment in respect of the third (13 June 2011) earthquake. The appellants eventually accepted that the proceeding would serve no practical purpose, and on 23 May 2014, they filed a notice of discontinuance in the High Court at Christchurch. It is common ground that EQC did not receive the notice of discontinuance the appellants filed, although the appellants say it was posted to EQC.
EQC, being unaware that this step had been taken, contacted the High Court Registry in February 2015 with a view to advancing the proceeding and discovered the appellants had filed the discontinuance. On 15 April 2015 EQC applied for costs pursuant to r 15.23 of the High Court Rules. It provides:
15.23 Costs
Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.
In his decision, Wylie J set out the relevant background. He noted that the discontinuance was filed after a telephone conference on 8 May 2014. In the minute that followed the conference, he had recorded that it appeared EQC’s apportionment of damage between the three earthquakes had not prejudiced the appellants. 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 Yarrall v Earthquake Commission

Details

AGLC: Yarrall v Earthquake Commission [2016] NZCA 517
Case: [2016] NZCA 517
Decision Date: 27 October 2016 at 11.30 am

CaseChat Overview and Summary

In the case of Yarrall v Earthquake Commission, the appellants, PJ Yarrall and A Stephens, appealed against a costs judgment given by Wylie J in the High Court at Christchurch on 25 June 2015. The appellants had discontinued a proceeding they had brought against the Earthquake Commission (EQC) and the Judge had ordered them to pay EQC costs of $23,482, plus disbursements. The appellants argued that the Judge had erred in awarding costs to EQC and submitted that costs should lie where they fall.

The main legal issues the Court was required to decide were whether the Judge had failed to take into account relevant considerations, taken into account irrelevant considerations, or was plainly wrong. The Court found that the Judge had correctly set out the applicable principles in this case. Rule 15.23 imposed an obligation on a plaintiff who discontinues a proceeding to pay the defendant's costs, unless the defendant agreed or the court ordered otherwise. The onus was on the discontinuing plaintiff to persuade the court to exercise the discretion to order "otherwise". The Court found that the Judge had taken into account all relevant considerations and did not take into account anything that was irrelevant.

The Court found that the appeal was dismissed and the appellants must pay two-thirds of the respondent's costs of this appeal on a band A basis and usual disbursements. The Court found that the Judge had correctly set out the applicable principles in this case and had taken into account all relevant considerations and did not take into account anything that was irrelevant. The Court found that the Judge did not err in failing to adapt his application of costs principles to this proceeding and that the appellants had not discharged the onus to persuade the Court to displace the presumption. The Court found that the Judge did not double-count the apportionment factor, the inadequacy of the appellants' affidavit was not an irrelevant consideration, and the Judge did not err in characterising the proceeding as moot. The Court found that the Judge was right to point out, as part of his overall assessment, that the appellants breached timetabling directions at an early stage and did not respond to inquiries from EQC's counsel in May and September 2014 as to whether they intended to continue the proceeding.

Orders