BLIGH v THE EARTHQUAKE COMMISSION [2020] NZHC 1966

BLIGH v THE EARTHQUAKE COMMISSION [2020] NZHC 1966 [6 August 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2013-409-1333[2020] NZHC 1966BETWEEN G FALLOON AND R JENKINS ASEXECUTORS OF THE ESTATE OF THELATE DEREK RICKY BLIGHPlaintiffAND THE EARTHQUAKE COMMISSIONFirst DefendantIAG NEW ZEALAND LIMITEDSecond DefendantCLAIMS RESOLUTION SERVICELIMITEDNon-PartyOn the papersCounsel: K W Clay and H M Weston for Plaintiff/Non-PartyN S Wood for EQCS J Connolly for IAGJudgment: 6 August 2020JUDGMENT OF CULL J[Costs on Application for Review][1] Claims Resolution Service Ltd (CRS) seeks an order for costs against thedefendants on its application to review the Associate Judge's judgment dated6 September 2019. This application was determined in my judgment of 1 May 2020,in which CRS sought that the non-party costs order in favour of the EarthquakeCommission (EQC) and IAG New Zealand Ltd (IAG) be quashed with either no costsagainst CRS or that the costs against CRS be varied and awarded on a several basis.11 Bligh v the Earthquake Commission [2020] NZHC 874 at [4].[2] Of the eight grounds advanced by CRS, it seeks in summary an award of 2Bcosts on the basis that it was successful in quashing the Associate Judge's finding thatCRS was jointly and severally liable and as a result, CRS was subject to a significantlylesser award of costs than had been ordered, namely a reduction in the award of costsby approximately $90,000. Of the four issues for determination, CRS claims itsucceeded in all but one, namely whether there was a causal connection between theincurred costs and CRS's involvement.[3] Both insurers oppose costs, principally on the basis that CRS was successfulin part only and failed in its claim that the costs order against it be quashed, becausethere was no causal connection between its conduct and costs incurred by thedefendants.[4] This contest is not that costs should follow the event, but that each of IAG andEQC claim that they had greater success than CRS and therefore no costs should bemade.[5] I am unable to uphold the defendants' submissions. It is plain from myjudgment, that the issue of joint and several liability was the principal issue incontention in this review. I say so at [33] and the ensuing paragraphs in the judgmentdemonstrate the extent to which the parties engaged on r 14.14 of the High Court Rules2016 and its application to this case. Albeit that CRS was unsuccessful in disputingthat there was no causal connection between the incurred costs and its involvement,CRS had a significant measure of success, as set out above.[6] I record that having canvassed both the defendants' submissions and theauthorities referred to, I distinguish this case from Hood v the EarthquakeCommission.2 This is not a situation where neither side has been entirely successful.I consider CRS's success here was important in resolving the joint and liability issueunder r 14.14 leading to a significant reduction in the award of costs against it. Coststherefore should follow the event.2 Hood v the Earthquake Commission [2019] NZHC 349.[7] I note that no issue is taken with CRS's calculation of 2B costs and reasonabledisbursements, with the exception of CRS's claim for second counsel. I agree. I donot consider that costs for second counsel is appropriate.[8] Accordingly, 2B costs are awarded to CRS. No allowance is made for secondcounsel. Reasonable disbursements are ordered subject to the Registrar's approval.Cull JSolicitors:Chapman Tripp, Wellington for EQCDuncan Cotterill, Auckland for IAGCanterbury Legal, Christchurch for CRS