JARDEN v THE EARTHQUAKE COMMISSION [2014] NZHC 2406

JARDEN v THE EARTHQUAKE COMMISSION [2014] NZHC 2406

The Court declined to order further particularisation of the damage by individual earthquake where the plaintiffs had pleaded 99% allocation to the 4 September 2010 earthquake and 1% to 22 February 2011, finding further split unnecessary; the Court refused to require particulars that seek the 'why' for repairs because those invite expert opinion; the Court ordered the plaintiffs to provide a detailed breakdown of the rebuild cost schedule (foundations, above-ground works, garage, percentages for professional fees, preliminaries, margin and contingency) to give useful and fair notice to defendants.

Citation
[2014] NZHC 2406
Parties
Plaintiff: David John Jarden; Plaintiff: Joanne Jarden; First Defendant: The Earthquake Commission; Second Defendant: Lumley General Insurance (NZ) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 October 2014
Procedural Posture
Civil Insurance Dispute / Interlocutory Application for Further Particulars Under High Court Rules R 5.21
Outcome
Application partly granted and partly declined.
Legal Topics
Particulars of Pleading, Repair and Rebuild Costs, Causation, Allocation of Damage
Insurance Civil Procedure Property Damage Disaster Law Particulars of Pleading Repair and Rebuild Costs Causation Allocation of Damage

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Parties

David John Jarden

Plaintiff

Joanne Jarden

Plaintiff

The Earthquake Commission

First Defendant

Lumley General Insurance (NZ) Limited

Second Defendant

Procedural Posture

Civil Insurance Dispute / Interlocutory Application for Further Particulars Under High Court Rules R 5.21

Legal Issues

  1. 1 Whether plaintiffs must identify which earthquake caused each particular item of sudden and accidental loss
  2. 2 Whether plaintiffs must provide particulars explaining why specific repairs are required (the 'why' questions)
  3. 3 Whether plaintiffs must provide a detailed breakdown of rebuild cost components (foundations, above-ground works, professional fees, preliminaries, margin, contingency)

Ratio Decidendi

The Court declined to order further particularisation of the damage by individual earthquake where the plaintiffs had pleaded 99% allocation to the 4 September 2010 earthquake and 1% to 22 February 2011, finding further split unnecessary; the Court refused to require particulars that seek the 'why' for repairs because those invite expert opinion; the Court ordered the plaintiffs to provide a detailed breakdown of the rebuild cost schedule (foundations, above-ground works, garage, percentages for professional fees, preliminaries, margin and contingency) to give useful and fair notice to defendants.

Court Disposition

Application partly granted and partly declined.

Orders

  • Application for particulars identifying loss by each earthquake (paragraph 8) declined
  • Application for particulars asking 'why' specific repair works are required (paragraph 19(1) 'why' questions) declined