LYTTELTON PORT CO LTD v AON NEW ZEALAND [2019] NZHC 726

LYTTELTON PORT CO LTD v AON NEW ZEALAND [2019] NZHC 726 [5 April 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2015-409-000428[2019] NZHC 726BETWEEN LYTTELTON PORT COMPANY LIMITEDPlaintiffAND AON NEW ZEALANDDefendantAND OPUS INTERNATIONAL CONSULTANTSLIMITEDFirst Third PartyAND COLLIERS INTERNATIONALVALUATION (CHCH) LIMITEDSecond Third PartyHearing: 3 April 2019 via telephone hearingAppearances: Z G Kennedy and J M Embling for the DefendantM E Parker, E L Keeble and A J Gaborieau for the First ThirdPartyJudgment: 5 April 2019Reissued: 9 April 2019JUDGMENT OF NATION J[1] On 28 March 2018, Aon was granted leave to issue a third party notice againstOpus. The close of pleadings date between Aon and Opus was 17 August 2018. A 12week trial is scheduled to begin on 20 May 2019. On 14 February 2019, Aon filed anapplication for leave to amend its claim. If granted, that amendment would exposeOpus to potential liability as a joint tortfeasor for approximately an additional $29million over the $6 million to which it is currently exposed. Aon's application forleave is strongly opposed by Opus.Background[2] The plaintiff (LPC), through the Canterbury earthquakes, suffered majordamage to its property and business associated with the Lyttelton Port. Throughmediation, it entered into a settlement agreement with Vero in December 2013.[3] On 29 June 2015, LPC issued proceedings against its broker Aon. LPC allegesAon failed to exercise reasonable skill and care in particularised ways. When it beganproceedings, it alleged this had resulted in losses of approximately $185 million.[4] In his judgment of 28 March 2018, Associate Judge Matthews granted leave toAon to issue a third party notice against Opus and also the second third party(Colliers).1 Both companies had been involved in providing advice to Aon when Aonwas arranging insurance for LPC. Leave was required because of the time that hadelapsed since the date for filing of Aon's defence.2[5] As the Associate Judge recorded in his judgment:[6] In relation to Opus, Aon says that LPC engaged Opus to undertakeinsurance valuations of a group of assets including, amongst others, LPC'sharbour structures, a term that includes the asset known as number 1Breastwork. Aon says that Opus prepared a spreadsheet setting out LPC'sharbour structures which identified number 1 Breastwork as an asset whichOpus was required to value. Opus then provided LPC and Aon with aspreadsheet containing its insurance valuations for LPC's harbour structures,but there was no reinstatement cost estimate for number 1 Breastwork and theentry "0" was recorded in the column headed "Insurance Replace Cost 2010".In a subsequent updated version of this spreadsheet there was still noreinstatement cost estimate for number 1 Breastwork, and the same entry inthe Insurance Replace Cost 2010 column.[7] Aon says that Opus owed LPC duties in contract and in tort to exercisereasonable care and skill in carrying out its instructions to undertake avaluation of number 1 Breastwork and to include a valuation for that asset inthe spreadsheet to be provided to LPC and its insurers. It says, as it does withColliers, that Opus is liable as a concurrent joint tortfeaser with Aon if Aon isfound liable to LPC.[8] Aon says that it used the valuations provided by Colliers and Opus inarranging material damage cover for assets. Consequently cover was nottaken out in respect of the assets in the two classes described. When theearthquakes struck LPC was uninsured in respect of these assets.1 Lyttelton Port Company Ltd v Aon New Zealand [2018] NZHC 568.2 High Court Rules 2016, r 4.4(2).[6] LPC had pleaded against Aon that its uninsured earthquake damage and lossincluded the estimated reinstatement costs of restoring earthquake damage to the No.1 Breastwork in the sum of approximately $6 million.[7] Aon filed its first statement of claim against the third parties on 27 April 2018and a first amended statement of claim against Opus on 22 June 2018. Opus filed anamended statement of defence to that amended statement of claim on 3 July 2018. Thepleadings all related to Aon's potential liability in respect of LPC's claim over the No.1 Breastwork as one of LPC's structures requiring valuation.[8] In a minute of 19 June 2018, I made timetabling directions, largely as suggestedand agreed to by counsel for all parties. LPC had to serve its briefs of evidence by 16July 2018. The close of pleadings date as between Aon, Opus and Colliers was 17August 2018. Aon was to serve its briefs of evidence by 17 September 2018. Theproceedings were to go to trial, scheduled for 12 weeks beginning 20 May 2019.[9] There was serious slippage with the service of briefs of evidence on the part ofAon. LPC raised concerns as to this. As a result, I convened a telephone conference.In a minute of 19 November 2018, I referred to the difficulties Aon had faced incompleting briefs, particularly from experts. I then amended the timetablingdirections. Aon had to serve all its briefs of evidence by 30 November 2018. I directedthere was to be a further pre-trial conference before me on 14 March 2019.[10] Aon's application for leave to file the amended statement of claim was madeon the grounds:(a) it was in the interests of justice for all Aon's third party claims to be heardconcurrently at trial and there would be no real prejudice to Opus becausethe trial was not to start until 20 May 2019;(b) there would be time for Opus to prepare and serve any additionalamendment with reasonable changes to the timetable for Opus' briefs ofevidence for that purpose;(c) further evidence from Opus might not be necessary because Opus'principal witness, Gary Chalmers, had dealt with relevant issues in adetailed brief of evidence already provided for LPC; and(d) Aon's delay in amending the claim was reasonable and explicable becausethe proposed new cause of action against Opus arose out of documentswhich had only been disclosed by LPC on 16 July 2018. Aon had beenheavily committed to the preparation of detailed evidence in response tothe 17 briefs of evidence from LPC in the weeks following 16 July 2018.[11] The hearing date on the leave application was the date for the alreadyscheduled pre-trial conference of 14 March 2019.[12] Opus filed a notice of opposition to Aon's application on 12 March 2019.[13] In the notice, Opus said it opposed the application on the grounds:(a) Aon had notice of LPC's claim against it as to reclaimed land in LPC'soriginal statement of claim and the new cause of action should have beenincluded in the original statement of claim dated 27 April 2018;(b) there was no valid reason for the delay;(c) any delay in Aon receiving documents from other parties was not Opus'concern nor an excuse; and(d) Opus would suffer prejudice given the impending trial and the need forOpus to prepare further evidence and engage experts.[14] After the conference with counsel of 14 March 2019, I directed there would bea telephone hearing of the application. That hearing took place on 3 April 2019.[15] Submissions for Aon were filed on 28 March 2019. In those submissions,counsel, Mr Kennedy, explained the delay by submitting that the basis of Aon'sproposed new cause of action arose out of a report prepared by Mr Chalmers of Opusfor LPC in February 2015 but not provided by LPC to Aon until 18 July 2018 (the landreport).3 He also referred to the demands that Aon had faced in having to deal with 57other newly discovered documents provided on 18 July 2018 and the demands ofresponding to LPC's 18 briefs of evidence totalling 526 pages, excluding schedules.[16] Submissions were filed by Opus on 1 April 2019. In those submissions,counsel was highly critical of the delay that had occurred. In submissions, counseladvised that Opus wished to obtain expert evidence and, as a precaution, had beentrying to do so since the application was first filed but had found it difficult. Withsubmissions, Opus filed an affidavit from a valuer employed by Opus, John Vessey.In his affidavit, Mr Vessey spoke of the small number of valuers available in NewZealand able to value port assets. He said it would be very difficult for Opus to obtainexpert evidence in relation to the issue of reclaimed land between now and thecommencement of the trial on 20 May 2019.[17] In his oral submissions, Mr Kennedy referred to the way Mr Chalmers, inevidence for LPC, had described reclaimed land in a way that could include certainseawalls. He also submitted that it was only when Aon saw the land report that theysaw Opus had taken an inconsistent approach providing reinstatement cost valuationsas to some of LPC's reclaimed land but not other parts.[18] Mr Parker, for Opus, was highly critical of Aon not providing to the Court MrChalmers' briefs of evidence which Mr Kennedy had referred to. Mr Parker intendedto provide with his submissions Mr Chalmers' 72 page brief of which he said only twopages related to reclaimed land. That full brief was filed on 3 April 2019.[19] In response to that material, on the eve of the hearing, Aon filed with the Courtthe land report which Mr Kennedy had said was crucial in their identifying groundsfor the proposed new cause of action against Opus and also a brief affidavit from PeterWrona. He had previously provided a brief of evidence. In his evidence, he said thevaluations provided by Opus for the purpose of arranging insurance were not"valuations" as such on which valuation advice would be given. They were "insteadcomponentised replacement costs estimates" and that evidence as to what those should3 The report had been withheld by LPC as a privileged document, having been obtained for thepurpose of the proceedings.be in a replacement or reinstatement cost estimate were structural, civil andgeotechnical engineering issues, not valuation ones.Legal principles[20] Rule 7.7(1) High Court Rules 2016 provides that an amended pleading maynot be filed after the close of pleadings date without leave of the Court.[21] In Elders Pastoral Ltd v Marr, Cooke P for the Court of Appeal described thegrant of an amendment to the plaintiffs at a very late stage as a "notable indulgence tothem".4 In that instance, the amendment had been allowed after 57 days of evidenceand after more than a week of final submissions. The Court of Appeal neverthelessupheld the trial Judge's allowance of the amendment. The Court of Appeal said that,in relation to what counsel had described as belated applications for amendments, itwas difficult to envisage a case in which the relevant considerations could not becomprehended in the "three formidable hurdles of showing that the amendment is inthe interests of justice and will not significantly prejudice defendants or causesignificant delay".5[22] I accept that the farther or closer the application for amendment is to trial, theless or more formidable those hurdles will be.[23] Cull J recently and helpfully summarised principles applying to amendment ofpleadings with reference to authorities in Monster Energy Company v Ox GroupGlobal Pty Ltd.6 She identified the relevant considerations as follows:7(a) the merits of the proposed amended pleading;(b) whether irreparable damage would be suffered by the applicant;(c) the timing of the application and magnitude of, and reasons for, delay;(d) the risk of significant prejudice to other parties;(e) the effect on public resources reflected in the impact on case managementand the timetable to trial;4 Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) at 384.5 At 385.6 Monster Energy Company v Ox Group Global Pty Ltd [2016] NZHC 2124.7 At [28].(f) the importance of the principle that the parties should have everyopportunity to ensure that the real controversy goes to trial so as to securethe just determination of the proceeding;8 and(g) the overarching requirement is to exercise the discretion in the interestsof justice.9[24] In his submissions for Opus, Mr Parker referred to the way the High Court hademphasised the importance of the close of pleadings date and the importance ofoperating within the constraints of that close of pleadings date so that parties couldconcentrate on the demanding work involved in intensive preparation for trial.10 Healso referred to the way the High Court had outlined the principles that would berelevant as including the expectation created by r 7.7 that parties would proceed to ahearing based upon pleadings as they stand "after the close of pleadings date".11[25] Counsel for Opus also emphasised the importance of there being a satisfactoryexplanation and an evidential basis for seeking the amendment. He referred to thejudgment of the High Court of Australia in Aon Risk Services Australia Ltd v AustraliaNational University where the Court had said:12 So too is the need to maintain public confidence in the judicial system.Given its nature, the circumstances in which it was sought, and the lack of asatisfactory explanation for seeking it, the amendment to ANU's statement ofclaim should not have been allowed.[26] That statement was made by the High Court in explaining why it held a trialJudge to have been in error in allowing an adjournment and ultimately the vacating ofa four week trial after three days of hearing.[27] The comments were made in the context of proceedings which French CJdescribed as follows in his judgment:4. Save for the dissenting judgment of Lander J in the Court of Appeal, thehistory of these proceedings reveals an unduly permissive approach at bothtrial and appellate level to an application which was made late in the day, was8 Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd [1989] 3 NZLR 304 (CA) at 309; Clodev Sullivan [2016] NZHC 529 at [16].9 Chilcott v Goss [1995] 1 NZLR 263 (CA); Clode v Sullivan, above n 8, at [16].10 RHH Ltd v Anderson [2018] NZHC 2045 at [9].11 EBR Holdings Ltd (in liq) v Van Duyn [2016] NZHC 1169 at [59].12 Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27, (2009) 239 CLR175 at 5.inadequately explained, necessitated the vacation or adjournment of the datesset down for trial, and raised new claims not previously agitated apparentlybecause of a deliberate tactical decision not to do so. In such circumstances,the party making the application bears a heavy burden to show why, under aproper reading of the applicable Rules of Court, leave should be granted.[28] In Elders Pastoral, Cooke P referred to statements made by the House of Lordsin Ketteman v Hansel Properties Ltd13 as to the need for efficiency in litigation, similarto those that were made by the High Court in Aon Risk Services Australia Ltd vAustralia National University. Cooke P said that, provided an application foramendment could overcome what they said would be the three formidable hurdles fora belated amendment, very little weight should be given to the need for denunciationin deciding whether the amendment should be allowed.[29] Consistent with that, one of the principles which it was submitted for Opusshould be taken into account, through counsel's reference to the judgment in EBRHoldings Ltd (in liq) v Van Duyn, was:The discretion to permit a late amendment to a pleading in r 7.7(1) in theexercise of which access to justice will be regarded as the primary justice,taking into account the need to obviate significant prejudice to other partiesrather than taking a disciplinary approach in respect of belated amendments.The merits of the proposed new claim[30] These were not addressed in detail either in any memorandum supporting theapplication or in the written submissions I received. The basis of the additional claimAon wishes to make was however set out in detail in the proposed amended statementof claim.[31] In oral submissions, Mr Kennedy for Aon took me carefully through thedocuments which he said had caused Aon to consider it would have a claim tocontribution or indemnity from Opus with regard to any liability to LPC for uninsuredharbour work that could come within LPC's claim in respect of uninsured reclaimedland.13 Ketteman v Hansel Properties Ltd (1987) AC 189.[32] Mr Parker, for Opus, did not respond in any real substance as to the potentialmerits of this additional claim but submitted it would be quite unfair for the Court toproceed on the basis there was merit in the additional claim when neither Opus nor theCourt had been adequately informed as to how the claim would have merit when theapplication for amendment was made.[33] The application for amendment was accompanied by the proposed amendedstatement of claim with particulars as to the new claim. Opus then had sufficientinformation to argue that there was no merit in the new claim if they had wished tooppose the application for amendment on that basis.[34] With Aon's first amended statement of claim, Opus faced a claim that it hadbeen required to provide valuations for key assets including walls and seawalls. Opusfaced a claim that in May 2010 LPC had instructed valuers, including Opus, toundertake insurance valuations of LPC's key assets. It was claimed that Opus failedto provide LPC or Aon with an appropriate valuation for No. 1 Breastwork. Opus wason notice that LPC was claiming against Aon that Aon had failed to obtain insurancecover on a reinstatement basis in respect of No. 1 Breastwork or to give it appropriateadvice as to the potential need for such cover and information relating to that. Aonhad also advised Opus that LPC's claim in respect of the No. 1 Breastwork was forsome $6 million with regard to breach of duties Aon had to LPC. Opus faced a claimby Aon that, if Aon was liable to LPC, Opus would also be liable to LPC in negligence.Aon thus claimed against Opus contribution under s 17 Law Reform Act 1936 as toany liability that Aon might have to LPC with regard to the No. 1 Breastwork.[35] Opus has not attempted to strike out Aon's claim against it in respect of the No.1 Breastwork on the basis that Aon's claim in this respect could have no merit.[36] Although Aon has described its proposed claim against Opus as a new causeof action, it is more in the nature of an additional claim relying on the same cause ofaction, a potential liability as a joint tortfeaser or by way of contribution under s 17Law Reform Act. On that basis, the additional claim could have as much merit as theclaim that had been previously made as to the No. 1 Breastwork.[37] In its second amended statement of claim of 8 May 2018, LPC also allegedAon initially failed to claim from Opus estimated reinstatement costs for what wasdescribed as reclaimed land. LPC claimed it should have been given appropriateinformation and advice over the "fill, back fill or similar improvement the sole purposefor which was to form, extend or join a wharf to the effective shoreline", from theredescribed in the statement of claim as "reclaimed land". LPC alleged Aon wronglyadvised LPC these improvements were uninsurable. LPC claimed that when claimswere made on their insurance policy, the reclaimed land was not insured because landwas generally excluded under one term of the relevant policy. The reclaimed land hadnot been declared as part of the total insurance value. LPC claimed it could and wouldhave been insured under the policy if LPC had been properly advised.[38] LPC alleged Aon had failed to give appropriate advice as to whether it couldinsure reclaimed land, failed to obtain the required valuations for its reclaimed landand failed to ensure the reclaimed land was insurable. LPC claimed that, as a resultof these failures, LPC had suffered loss to the extent of the estimated cost of reinstatingLPC's reclaimed land, approximately $29 million.[39] In submissions, Mr Kennedy claimed that Aon had not understood theparticular basis as to this aspect of LPC's claim. I was told by counsel that, on 20 June2018, by notice served on LPC, they sought particulars.[40] In its application for leave, Aon said it received the primary documentunderpinning the proposed new claim on 16 July 2018. In submissions, Mr Kennedyexplained the relevant document was the land report prepared by Opus. The reportwas prepared for LPC on the instructions of its then solicitors. One of the tasksrequired of Opus was to value reclaimed land as at 30 June 2010 in a way that wasconsistent with the full valuation of port assets undertaken by Opus (and otherconsultants) at that time.[41] Mr Kennedy said they received these particulars through receiving a brief ofevidence from Mr Chalmers of Opus for LPC and Opus' land report on 16 July 2018.In that brief of evidence, Mr Chalmers said that in early July 2014 Opus was asked byLPC's then solicitors to advise, from an engineering perspective, what might be termedas reclaimed land for the purpose of LPC's insurance policy.[42] In his brief of evidence, Mr Chalmers says that on 19 May 2010 he told MrCooper of LPC that Opus would value certain harbour assets, including seawalls, thathe identified as standalone "breakwater seawalls" and valued them separately. He alsosays LPC and Aon left it to him to identify LPC's "key structures" and that he did thisby highlighting the main revenue generating harbour structures and seawalls on theOpus spreadsheet.[43] Later in his brief, he referred to "the land report" dated 20 February 2015. Ina summary of that report, Opus identified three seawall sections which could havebeen insured as part of the retained value in 2010 but which were not. Opus estimatedthat the valuation or costs of reinstatement for those seawalls in 2010 for insurancepurposes would have been $92.5 million. Opus' estimate as to the costs of reinstatingthis land to its pre-earthquake condition using information known as at December2013 in respect of three seawalls was some $25 million.[44] Mr Kennedy explained that, as a result of analysing the information in thisreport, it seemed to Aon there may have been an inconsistency in the way Opus hadtreated seawalls, and thus reclaimed land, as being insurable.[45] I cannot say, given the context in which I have had to consider the issue, theextent to which there is merit in Aon's position over this. It may turn out that there isan explanation for the way certain seawalls were dealt with by Opus as against others.What I can say is that, through reference to the relevant documents, in conjunctionwith reference to Mr Chalmers' brief and on the basis of information provided in July2018, it has been explained why it was Aon believes it may be entitled to a contributionor indemnity from Opus with regard to reclaimed land, and LPC's claim as to that ofapproximately $29 million. On the pleadings as they stand and with the evidence fromMr Chalmers as to the role assumed by Opus in advising LPC as to these matters in2010, it may be that Aon's claim against Opus could succeed if Aon is held liable toLPC on this aspect of LPC's claim.[46] I would not deny leave on the basis the amendment sought is as to a claim thatwould appear to have little merit.The timing of the application and reasons for delay[47] The close of pleadings date was 17 August 2018. Leave to file an amendedstatement of claim against Opus is required because there was no amendment to Aon'samended statement of claim against Opus before 17 August 2018. There was then afurther delay until 14 February 2019 before the application was filed.[48] For Aon, Mr Kennedy explained the delay by reason of the pressure that Aon,its expert witnesses and advisers were under in responding to the further documentsprovided by way of discovery from LPC in July 2018, and the detailed evidence in the18 briefs of evidence, totalling 526 pages excluding schedules, served on Aon between16 and 31 July 2018.[49] For Opus, Mr Parker says this should properly have been the subject of anaffidavit filed in support of Aon's application.[50] An affidavit and/or memorandum from counsel in advance of the hearing ofthe application would have been of assistance to the Court in explaining why therewas a delay. It is however understandable why such an affidavit was not filed. Thepriority for all parties over the months since July 2018 must have been in preparingbriefs of evidence, compiling an index of documents for trial bundles and all the otherintensive preparation that is required for trial.[51] Despite the slippage and delays that have occurred, the impression I have fromdealing with counsel in various case management conferences is that all counsel haveendeavoured to progress these proceedings conscientiously and to the best of theirability. There is certainly nothing to suggest that the parties or their counsel have takena cavalier approach to their responsibilities in the way that must have been a featureof the Australian proceedings in Aon Risk Services Australia Ltd v Australia NationalUniversity.[52] In a memorandum of 19 April 2018, Aon joined with LPC in agreeing totimetabling directions aimed at ensuring these proceedings could be allocated a 12week trial as soon as convenient after 1 April 2019. Both parties made thatcommitment although it was only on 28 March 2018 Aon was granted leave to joinOpus and Colliers as third parties. In my minute of 26 April 2018, I referred to theCourt's proposal to set the proceedings down for a 12 week trial beginning on 6 May2019. In my minute of 26 April 2018, I also recorded that LPC and Aon had agreedto attend mediation after the exchange of evidence in late November or earlyDecember 2018.[53] By the next telephone conference on 18 June 2018, the trial was set down for12 weeks to begin on 20 May 2019. Since then, all parties have been endeavouring toensure they would be ready to proceed at that time. Consistent with that approach,they are also now committed to the mediation to begin on 9 April 2019.[54] LPC was concerned at slippage with Aon's service of briefs in November 2018and of potential problems that could cause other parties in being ready for trial. Inmemoranda from both LPC and Aon over this, counsel referred to the difficulties theyfaced in having to brief expert witnesses who were outside the two organisations,experts who had other professional commitments and who themselves were underpressure. LPC referred to the difficulties they would face with the Christmas break.[55] The claim which Aon wishes to add to its existing claim against Opus relatesto only one part of LPC's claim against Aon for $185 million. Even with the briefexposure I have had to the evidential issues that relate to the current application, it isclear that the factual issues between the parties are complex and extensive, consistentwith the need for a 12 week trial.[56] Against that background, I find there is a reasonable explanation for Aon'sdelay in filing the application for leave to amend its pleading. I do not consider Aon'sfailure to file, either by way of affidavit or memorandum, an explanation for the delayshould be fatal to its application. The documents, including a brief of evidence onwhich it relies in explaining why it needs to amend its claim, are documents which allparties have had access to. All parties and their counsel have been aware through thevarious conferences and the service of briefs of evidence as to what all the other partieshave been doing in progressing the proceedings. Consistent with the appropriatelyconstructive approach counsel have taken as to the conduct of these proceedings, MrParker for Opus acknowledged the pressure that Aon and their advisers would havebeen under in preparing their evidence and the other preparation required for trial.Prejudice/delay[57] Potentially, this could have been the matter of greatest concern.[58] Significantly, it was not suggested for Opus that allowing the amendedpleading would necessitate a delay in the trial.[59] I note also that all parties, including Opus, are committed to participating inthe mediation which is to begin on 9 April 2019. For that, all parties are to becommended. Opus has remained committed to that, knowing since 14 February 2019that potentially the claim against them by Aon could increase from $6 million to some$35 million.[60] Aon does not suggest that, if it is granted leave, it will need to serve a furtherbrief of evidence to support the further claim against Opus, except possibly in reply.[61] Potentially, Opus may wish to brief further experts or other witnesses. Thereis time for it to do so if required, albeit such witnesses will be under some pressure. Itis also not clear to me that they will need to do so.[62] A valuer employed by Opus, Mr Vessey, has already provided a brief ofevidence on valuation issues related to LPC's claim. That brief has been provided byMr Vessey as a witness for LPC. I have not seen his brief but, if evidence from avaluer was needed in relation to LPC's reclaimed land claim, then I would assume hehas provided valuation evidence as to that aspect of LPC's claim. If no such valuationevidence has been provided to support that aspect of LPC's claim, it is difficult to seewhy Opus would need to now brief another valuer to deal with a reclaimed land claimagainst Opus.[63] If there is an issue between Aon and LPC over the quantum of LPC's claim asto reclaimed land, it is reasonable to assume that Aon would have already served briefsfrom the appropriate experts supporting whatever position it has adopted overquantum. In terms of disputing the quantum of LPC's claim in relation to thereclaimed land, Aon and Opus would have a similar interest.[64] LPC's claim in respect of reclaimed land is based around what it says wouldhave been the reinstatement costs for earthquake damage to that aspect of LPC'sharbour structures when insurance was being arranged, and what the actualreinstatement costs would have been in December 2013 when LPC settled its claimswith Vero as the insurer. It appears to me, from Mr Chalmers' evidence and the landreport, that evidence as to this would be provided not by a valuer but by an appropriateengineer, as Mr Wrona suggested in his affidavit.[65] An engineer who is to give this evidence for LPC is Mr Chalmers, a principalof Opus based in the Christchurch office. He peer reviewed and approved for releasethe land report referred to earlier which Aon says has been important in its seeking toamend its claim against Opus. Mr Chalmers is already a witness. In his brief ofevidence, Mr Chalmers gives evidence as to the estimated loss in respect of the No. 1Breastwork, partly through reference to the land report. Through preparation of thatreport, he must be already fully briefed as to the basis on which Opus was instructedto provide cost estimates for various harbour structures in 2010 and the reasons whythey provided estimates for some but not others. If Opus required him to provideevidence to deal with any potential liability that Opus might have as a result of anamendment to the claim, it is reasonable to consider that he would be able to do sobefore the trial. However, it may well be that no further evidence from him would berequired.[66] On Aon's claim against Opus as currently pleaded, Opus has been facing aclaim for approximately $6 million. There was no dispute that it has elected not toserve any witness briefs to protect its position. It would seem that, despite its potentialliability to Aon over the No. 1 Breastwork, Opus has been content for both MrChalmers and Mr Vessey to continue as witnesses for LPC in relation to all aspects ofLPC's claim on which they are able to give evidence.[67] Mr Chalmers provided a brief of evidence in reply dated 21 February 2019. Inthat he continues to provide evidence as to estimated repair costs for the No. 1Breastwork. He deals also with evidence for LPC in relation to reclaimed land. Thatsuggests strongly to me that Opus would not now want to obtain evidence from anotherengineer as to what the appropriate reinstatement cost should be for reclaimed landrelevant to the additional claim Aon wishes to make against Opus.[68] I am further fortified in this view by the submission Mr Parker made duringthe recent hearing. I asked what he wanted to say about the potential need for partiesto be involved in the costs and risks of further separate proceedings if Aon was heldliable to LPC on LPC's claim in respect of reclaimed land. Mr Parker submitted thiswould not necessarily be the consequence of not allowing Aon to amend its claim. Hesuggested, without an amendment to Aon's claim, all issues that would have to beaddressed in any further proceedings would be canvassed fully in the trial scheduledfor 20 May 2019. That submission suggests strongly to me that Opus considers thatall evidence relevant to a potential claim between Aon and Opus will be before theCourt in the trial scheduled to begin on 20 May 2019, despite the relatively shortperiod between now and the trial commencement date.[69] There will be some prejudice to Opus in having to respond to an amendedclaim. It will be exposed to a significantly greater liability, an increase from around$6 million to some $35 million on the amended claim. There will be additional legalcosts incurred in responding to it. There may be a need for it to provide furtherevidence. It will have to address issues during the trial in ways that would not benecessary if leave is denied. The prejudice it faces in this regard will not however beof such significance as to be a ground in itself to deny leave.The interests of justice[70] In essence, I see this as a case where all the evidence relevant to a claimbetween Aon and Opus over the reclaimed land is likely to be before the Court on thecase as already pleaded in the trial scheduled to begin on 20 May 2019. On the basisof that evidence, it appears Aon may be entitled to a contribution from Opus for up toa further $29 million on the claim which LPC has made against Aon for approximately$185 million.[71] If Aon is not able to pursue such a claim against Opus in the currentproceedings, it might well have to pursue such a claim in separate proceedings. If thatwere necessary, both Aon and Opus would face the very significant costs in relitigatingmatters that are already before the Court. There would be the same need to brief, atsignificant expense, many of the expert witnesses who are to give evidence at trial,and all the delays associated with that. There would be the risk of differing results intwo separate proceedings, an outcome that would bring the course of justice intodisrepute. It would also involve a significant use of Court resources to the detrimentof other potential litigants who are seeking access to the Court to resolve their disputes.The objective of the High Court Rules is to secure the "just, speedy, and inexpensivedetermination of any proceeding".14 These current proceedings are of a nature thatcould never be inexpensive but to deny Aon's application so as to risk the need for theparties to be involved in further hugely expensive litigation would be the antithesis ofwhat the High Court Rules strive to achieve.[72] It is in the interests of justice that all potential issues as between Aon and Opuscan be determined through the trial which all parties are committed to and which is tobegin on 20 May 2019.[73] I am satisfied that it is in the interests of justice for leave to be granted to Aonto file its second amended statement of claim against Opus in accordance with thedraft amended statement of claim attached to its application for leave. Leave is grantedaccordingly.Costs[74] Aon has had to seek an indulgence from the Court in seeking leave to amendits pleadings at such a late stage. Given the way in which the application was presentedand the lack of supporting information explaining the delay, it was reasonable for Opus14 High Court Rules 2016, r 1.2.to oppose the application and for Aon to have to justify its application in the way thatoccurred through the hearing that took place.[75] In the circumstances, although Aon succeeded with its application, it isappropriate that Aon pay costs to Opus in respect of this application. Opus are entitledto costs on a 3B basis. Although three counsel were present for Opus for the hearing,I certify for one second counsel.Solicitors:Chapman Tripp, ChristchurchMinterEllisonRuddWatts, AucklandParker Cowan Lawyers, QueenstownWynn Williams, Christchurch.