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Young v Tower Insurance Ltd

Young v Tower Insurance Ltd

Case [2017] NZHC 482 16 March 2017

Admissibility of Evidence

Breach of Contract

Restitution

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000222 [2017] NZHC 482

BETWEEN
GREGORY PETER YOUNG AND MALLEY

& CO TRUSTEES LIMITED Plaintiffs

AND

TOWER INSURANCE LIMITED Defendant

Hearing: (Dealt with on the papers)

Counsel:

P F Whiteside QC and H T Shaw for Plaintiffs

M C Harris and ATB Joseph for Defendant

Judgment:

16 March 2017

JUDGMENT OF GENDALL J [As to Costs]

Introduction

[1] In a judgment I issued in this proceeding on 7 December 2016 (the substantive judgment) I found that the plaintiffs’ claim, under its home insurance policy with the defendant, in the main succeeded. The policy claim related to significant damage caused to the plaintiffs’ home as a result of the Canterbury earthquake sequence. My decision included a declaration that the house was beyond repair in terms of the policy. Therefore, given that it was regarded as a rebuild, the maximum payable by the defendant in terms of the policy was to be $1,620,887.

[2] The case before me involved one cause of action whereby the plaintiffs claimed that the defendant had breached the insurance policy contract. Although the plaintiffs did effectively succeed on claim, the ultimate outcome, as I have noted, was that the rebuild cost under the contract was to be $1.62m dollars, some $500,000 less than the amount the plaintiffs ultimately claimed. In addition to the declaration noted at para [1] above, in my substantive judgment the plaintiffs were also successful to a limited degree in their ground- breaking claim for general damages against the defendant. A “nominal” award of general
damages of $5000 was made.

YOUNG v TOWER INSURANCE LIMITED [2017] NZHC 482 [16 March 2017]

[3] In giving my substantive judgment I reserved questions of costs, disbursements and experts’ fees. On these issues, at para [191] of the substantive judgment I made a direction that:

…in the absence of the parties being able to agree these issues between them, they are to file submissions on the question on a sequential basis. These are to be referred to me and, in the absence of either party indicating they wish to be heard on the issue, I will decide those questions on the basis of the submissions filed and the material before the Court.

[4] Counsel have confirmed that the parties have been unable to agree these issues between themselves. Accordingly, counsel for the plaintiffs has filed an initial memorandum seeking costs dated 13 February 2017. Counsel for the defendant in turn has filed his memorandum on costs in response dated 2 March 2017. Counsel for the plaintiffs has then filed a memorandum in reply dated 3 March 2017.

[5] I have had an opportunity to consider all those memoranda filed, together with the other material before the Court. I now give my decision on costs, disbursements and experts’ fees relating to this proceeding.

Plaintiffs’ position

[6] From the memoranda filed by Mr Whiteside QC, counsel for the plaintiffs, it is apparent the plaintiffs as the largely successful parties in this…

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 Young v Tower Insurance Ltd

Details

AGLC: Young v Tower Insurance Ltd [2017] NZHC 482
Case: [2017] NZHC 482
Decision Date: 16 March 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Gregory Peter Young and Malley & Co Trustees Limited, sued the defendant, Tower Insurance Limited, for breach of a home insurance policy following damage to the plaintiffs’ home due to the Canterbury earthquake sequence. The plaintiffs sought compensation for the rebuild of their house under the policy. The court found that the house was beyond repair and ordered the defendant to pay $1,620,887 as compensation. The plaintiffs also sought general damages for the defendant's alleged dishonesty and bad faith, which the court granted to a limited extent. The court then considered the costs, disbursements, and experts' fees related to the proceeding. The plaintiffs sought a total of $194,115.91, while the defendant argued for a significant reduction, claiming that the plaintiffs had only a 40% net success rate and had made unnecessary allegations of wrongdoing. The court ruled that the plaintiffs were largely successful in the proceeding and that a differential time banding for trial preparation and related steps was appropriate. The court also found that the plaintiffs' allegations of dishonesty and bad faith were without foundation and had unnecessarily extended the trial. Consequently, the plaintiffs' costs award was reduced to account for the extended trial time. The court approved the plaintiffs' claim for $89,849 in costs, $67,988 in expert witness costs, $150 in other witness expenses, and $30,736.91 in court fees and other disbursements, for a total of $188,723.91.

Orders