Yarrall v Earthquake Commission - [2015] NZHC 1451

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001451 [2015] NZHC 1451

BETWEEN
P J YARRALL AND A STEPHENS

Applicants

AND

EARTHQUAKE COMMISSION Respondent

Hearing: On the papers

Appearances:

A McKenzie for Applicants
A Neris for Respondent

Judgment:

25 June 2015

JUDGMENT OF WYLIE J (COSTS)

This judgment was delivered by Justice Wylie on 25 June 2015 at 4.30pm
pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:………………………………………

YARRALL & STEPHENS v EARTHQUAKE COMMISSION [2015] NZHC 1451 [25 June 2015]

Introduction

[1] In August 2013 the applicants filed judicial review proceedings. They challenged EQC’s decision apportioning the damage to their residential house in Woodham Street, Christchurch between the February and June 2011 earthquakes.

[2] A notice of discontinuance was filed by the applicants on 23 May 2014. It was not however served on the respondent. Indeed it has still not been served on the respondent. The respondent only became aware that the proceedings have been discontinued when it approached the Registrar earlier this year with a view to advancing the proceedings.

[3] The respondent now seeks costs pursuant to r 15.23 of the High Court Rules.

[4] The applicants resist any costs award. They suggest that costs should lie where they fall.

Background

[5] As noted, the application for judicial review was filed in August 2013. The respondent filed a statement of defence relatively promptly in October 2013.

[6] The proceedings first came before the Court by way of a face to face conference in November 2013. At that conference, the Court was advised that both parties anticipated that the matter could be resolved at mediation. Timetable directions were made to ensure that all relevant evidence was exchanged and to ensure that the applicants’ insurer was made aware of the proceedings. The orders were breached by the applicants. They were late in filing their affidavits in support of their application for review. The respondent was due to file affidavits supporting its position by 21 January 2014. Given the delay by the applicants, it sought an extension of time. The applicants’ counsel agreed to this and the extension was approved by the Court in a minute issued on 18 February 2014.

[7] The matter was next due for a telephone conference in March 2014. A joint memorandum from counsel was filed. It recorded that counsel had agreed that a

meeting should take place between counsel later in March 2014, with an agenda to be prepared by the applicants’ counsel. At the meeting, counsel were to discuss whether mediation was required. The memorandum recorded that if the meeting did not successfully resolve matters, there should be a further telephone conference in May 2014. This was intended to allow time for any mediation to take place.

[8] Following the joint memorandum, counsel for EQC was unable to engage substantively with the applicants’ counsel. The matter did not progress either to a meeting or mediation.

[9] In May 2014 one of the applicants, Mr Yarrall, telephoned counsel for EQC personally.…

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: [2015] NZHC 1451
Decision Date: 25 June 2015

CaseChat Overview and Summary

The applicants, P J Yarrall and A Stephens, brought judicial review proceedings against the Earthquake Commission (EQC) challenging the latter’s decision to apportion damage to their residential property in Woodham Street, Christchurch between the February and June 2011 earthquakes. The applicants filed a notice of discontinuance on 23 May 2014, but did not serve it on EQC, which only became aware of the discontinuance when it approached the Registrar to advance the proceedings. EQC applied for costs under rule 15.23 of the High Court Rules. The applicants opposed any costs award, arguing that costs should lie where they fall.

The Court considered the mandatory obligation established by rule 15.23 that a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant unless the defendant otherwise agrees or the Court otherwise orders. The Court also considered its discretion to order that costs should lie where they fall, or that the defendant should pay the costs of the plaintiff in whole or in part, but noted that this discretion is qualified by the specific costs rules. The Court found that the applicants’ discontinuance was unjustified, that the respondent had not caused the litigation and that there was no intervening governmental or third party decision that rendered the proceeding redundant. The Court also found that the applicants’ insurer had accepted EQC’s apportionment and that it had no intention to participate in the judicial review proceedings. The Court concluded that it was appropriate to award costs in EQC’s favour on a 2B basis, together with its reasonable disbursements.

The Court orders that the applicants must pay EQC’s costs, including in relation to this application on a 2B basis, in the amount of $23,482.00, and its reasonable disbursements in the sum of $121.40.

Orders