GOODIER v THE EARTHQUAKE COMMISSION [2018] NZHC 2980

GOODIER v THE EARTHQUAKE COMMISSION [2018] NZHC 2980 [16 November 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECIV-2016-483-16[2018] NZHC 2980BETWEEN MARK ALBERT GOODIER ANDNICHOLA JANE GOODIER ASTRUSTEES OF THE GOODIER FAMILYTRUSTPlaintiffsAND THE EARTHQUAKE COMMISSIONFirst DefendantAND IAG NEW ZEALAND LIMITEDSecond DefendantHearing: 17 – 28 September 20188 – 10 October 201812 October 201816 October 2018Appearances: G D R Shand and N T P Lala for the PlaintiffsB A Scott and J Y Moran for the First DefendantR W Raymond QC and S K Swinerd for the Second DefendantJudgment: 16 November 2018JUDGMENT OF CULL J[plaintiffs' amendment of pleadings][1] The trial of this civil proceeding commenced in Whanganui on 17 September2018, and at the end of two weeks, on 28 September, was adjourned for a furtherweek's hearing in Wellington from 8 to 12 October. At the request of counsel, finalsubmissions were heard on 16 October 2018.[2] At 5.15 pm on 16 October, after all counsel had delivered their closingsubmissions, Mr Shand for the plaintiffs handed up an amended statement of claim atthe close of his reply submissions.[3] Counsel for the defendants objected to the "last-minute application," primarilyon the grounds that no amended pleading may be filed after the close of pleadingsdate, without the leave of the Court.[4] Mr Shand made no application for leave to file the amended statement of claim,and given the lateness of the hour, I treated the handing-up of the amended claim asan oral application for leave. Mr Shand, when asked for the grounds of his"application", responded that it "tidies up many issues."[5] I directed that the defendants file memoranda, with their response to the oralapplication.[6] The defendants filed memoranda in opposition to the plaintiffs' application tofile the amended statement of claim and by telephone conference on 2 November2018, all counsel were in agreement that the application should be dealt with on thepapers and no further hearing time was required.The amendments[7] The plaintiffs' amended statement of claim does not show the amendments bybolding or by tracking the changes of deleted paragraphs.[8] I therefore set out the amendments, from a comparison of the plaintiffs' originalstatement of claim with the proposed first amended statement of claim as follows:(a) Para [5(1)(b)(i)]: "the second defendant" has been changed to read"IAG".(b) New para [6], which reads:6 In the policy the definition of "house" expressly includes:(1) Driveway of permanent construction that providesdirect access to the residential dwelling(s), or anyother outbuilding;(2) Patio, paths and paving of permanent construction,deck, steps, gate or fence, as long as they are on orwithin the residential boundaries within which theresidential dwelling is situated;(3) Walls including garden and retaining walls.(c) Deleted paras [8] and [9] and replaced with a new para [9] which reads:9 Under s 21 of the EQC Act 1993 the first defendant does notinsure any road, drive, path, constructed in a residentialbuilding or being an integral part of a residential building, orany paving or other artificial surface.(d) The wording of para [10] has been amended to read:10 The house comprises/comprised:(1) A dwelling of timber and weatherboard construction,with a tin and colourbond roof a connected garage("the dwelling");(2) A driveway, paths and pavers ("the external features")(e) The details of what loss was caused to the house and land by thelandslip have been expanded from 11 items to 34 items. The additionalitems included are:(5) Exacerbation of existing cracking in the garage concrete floorslab;(6) A crack across the junction between the workshop and garage;(7) Garage floor and foundation subsiding;(8) Movement of garage concrete foundation slab relative to thehouse;(9) Movement of the eastern garage wall in relation to the house;(11) Roof leaks;(12) Separation of weatherboards on the eastern elevation betweenthe new and existing garage;(13) Slumping below the gully trap on the eastern elevation betweenthe new and existing garage;(14) Weatherboards out of level;(15) Misalignment in the roof and gutter lines above the garage door;(16) A fall in the lounge floor of 24mm over approximately 3m;(17) Rotation or bending of the lounge bay window corner post;(18) Lounge bay window sloping in the same direction as the floor;(19) Crack at the base of the bay window lining and architravejunction;(20) Doors that are jamming;(21) Cracking to internal plasterboard linings;(22) Cracks in the firebox;(23) Movement to the timber cross bracing beneath and behind thefirebox;(24) Cracking and separation of pavers;(25) Movement of pavers adjacent to the support pole at ground leveldirectly below the southwest corner of the lounge;(32) Driveway and walkway collapsed;(33) Void beneath slab and adjacent to pile;(34) Pile lean(s).(f) Paras [12] and [14]–[16] have been deleted.(g) The wording of paras [20] and [21] from the first statement of claimhas been amended but the content is the same.(h) Paras [26] and [27] have been deleted and replaced with:21 To remediate the dwelling on its current site to a condition assimilar as possible to when it was new it would cost$226,095.72 (as set out in the attached schedule).22 To remediate the external features on their current site to acondition as similar as possible to when it was new it wouldcost $440,864.36(i) In relation to the first cause of action, under s 18 of the EQC Act, thefigure the plaintiff seeks against the first defendant has reduced from$77,091.79 to $76,709.79.(j) In relation to the second cause of action, under s 19 of the EQC Act, theplaintiffs now seek general damages of $50,000 (as well as interest andcosts). The particulars of this pleading have been amended in paras[30]–[40].(k) In relation to the third cause of action, against IAG for breach ofobligations, the particulars in paras [41]–[44] have been amended, byamending the cost to remediate the house and allegations of the amountthe second defendant is liable to pay to the plaintiffs. The plaintiffsplead that the second defendant is liable to pay them a further$369,972.95 to reinstate the house to a condition as similar as possibleto when it was new.Relevant legal principles[9] There are several rules under the High Court Rules 2016, which govern theamendment of pleadings at various stages prior to and after trial.[10] The first of those rules is r 7.7, which restricts the steps to be taken after theclose of pleadings date. Rule 7.7 provides:7.7 Steps after close of pleadings date restricted(1) No statement of defence or amended pleading or affidavit may befiled, and no interlocutory application may be made or step taken,after the close of pleadings date without the leave of a Judge.(2) Subclause (1) does not apply to –(a) an application for leave under that subclause; or(b) a pleading or an affidavit that merely brings up to date theinformation before the court; or(c) an application for amendment of a defect or an error underrule 1.9.[11] Rule 7.77 defines an amended pleading and provides:7.77 Filing of amended pleading(2) An amended pleading may introduce, as an alternative or otherwise,–(a) relief in respect of a fresh cause of action, which is not statutebarred; or(b) a fresh ground of defence.[12] After the close of pleadings date, an amended pleading may only be filed withthe leave of the Court under r 7.7. However, this does not apply to a pleading thatupdates information before the Court or an amendment made under r 1.9.[13] Rule 1.9 governs amendment of pleadings for defects and errors, at any stageof the trial until judgment is sealed:1.9 Amendment of defects and errors(1) The court may, before, at, or after the trial of any proceeding, amendany defects and errors in the pleadings or procedure in the proceeding,whether or not there is anything in writing to amend, and whether ornot the defect or error is that of the party (if any) applying to amend.(2) The court may, at any stage of a proceeding, make, either on its owninitiative or on the application of a party to the proceedings, anyamendments to any pleading or the procedure in the proceeding thatare necessary for determining the real controversy between theparties.(3) All amendments under subclause (1) or (2) may be made with orwithout costs and on any terms the court thinks just.(4) This rule is subject to rule 7.7 (which prohibits steps after the close ofpleadings date without leave).[14] The cases identify that the key factors in determining whether leave should begranted are:(a) an application for leave to permit late amendments to a pleadingrequires the courts to conduct a balancing exercise between the generalconcern that parties comply with procedural requirements, and theparticular interest in each case of ensuring the case is justlydetermined;1(b) parties should have every opportunity to ensure that the realcontroversy goes to trial so as to secure the just determination of theproceedings;2 and(c) relevant factors that the court may take into account in decidingwhether to grant leave include the length of delay in amending thepleading and the reasons for it, the risk of prejudice to other parties, andthe merits of the proposed amendments.3[15] In Wright Stephenson & Co Ltd v Copland, the Court held the then-equivalentof r 1.9 was not limited to the mere correction of defects and errors, but should allowall amendments necessary to determine the real controversy, unless satisfied that theapplicant was either acting in bad faith, or that the order would cause prejudice thatcould not be remedied by an award of costs.4[16] It is necessary for an applicant, in order to obtain leave to take steps after theclose of pleadings date, to surmount three "formidable hurdles": that it is in theinterests of justice; it will not significantly prejudice other parties; or cause significantdelay.5[17] In the recent decision of Canterbury Medical Officer of Health v Bond MarketsLtd, Gendall J referred to the three formidable hurdles and found that it was not in theinterests of justice to grant leave to the appellant, to amend its notice of appeal.6 Thatamendment sought that the authority's decision be overturned, contrary to theappellant's submissions and original appeal. Gendall J said:71 Whakatane District Council v Bay of Plenty Regional Council (2008) 19 PRNZ 91 (HC) at [10].2 Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd [1989] 1 NZLR 234 (HC) at 309.3 Grey v Elders Pastoral Holdings Ltd HC Auckland CP417/95, 1 May 1997; Fordham v XcentrixCommunications Ltd (1996) 9 PRNZ 682 (HC); and Tewsley St Properties Ltd v WrightStephenson Properties Ltd (1993) 7 PRNZ 58 (HC).4 Wright Stephenson & Co Ltd v Copland [1964] NZLR 673 (SC).5 Elders Pastoral v Marr (1987) 2 PRNZ 383 (CA) at 385.6 Canterbury Medical Officer of Health v Bond Markets Ltd [2018] NZHC 496.7 Footnotes omitted.[31] In order to obtain leave to such an amending step, not only after theclose of pleadings date but also after what is effectively the close ofthe trial here, it is necessary for the appellant to "surmount the threeformidable hurdles" of showing that doing so would be in the interestsof justice and it would not significantly prejudice other parties orcause significant delay. The Court must weigh these constraintsagainst the principle that parties should have every opportunity toensure that the real controversy between them is determined.[18] In refusing to grant leave, Gendall J noted that counsel for the appellant hadnot raised the possibility of a leave application during written submissions or at thehearing and delay would be likely to occur, as the other parties had no real opportunityto present full submissions on the leave application. The leave application was raisedafter the conclusion of the hearing.[19] In Ali v Siddique, the English Court of Appeal overturned a decision grantingpermission to amend the particulars of claim. The English Court of Appeal said:8[45] In considering any application to amend a court is concerned toensure that the case is dealt with justly and that, so far as practicable,the real issue between the parties can be adjudicated upon. However,the court is also concerned to ensure that a party faced with anamendment is not unfairly prejudiced. If an amendment is sought atany early stage in a claim, it will often be the case that any suchprejudice can be adequately compensated in costs. But where anamendment is sought at a very late stage and perhaps, as here, at thetrial, the position may be very different. A party faced with anapplication to make such a late amendment may be placed in greatdifficulty in giving it adequate consideration, in determining how itaffects the case that has been prepared and in assessing whether, forexample, it requires a corresponding amendment to its own pleading,further disclosure or fresh evidence or even an adjournment.[46] For all of these reasons a court will not only consider the prejudicethat would be caused to the party seeking a late amendment if it wererefused but will also have careful regard to the prejudice that wouldbe caused to the party faced with the amendment if it were allowed.Moreover, relevant factors to consider will include the degree ofprecision with which the proposed amendment is formulated and anyexplanation as to why it is being made so late. Indeed it has beenemphasised on more than one occasion by this court that a partyseeking a late amendment bears a heavy onus to justify it 8 Ali v Siddique [2015] EWCA Civ 1258.The parties' positions[20] The plaintiffs seek leave to amend their pleadings, relying on r 1.9, that it is inthe interests of justice for the real controversy to be determined in light of the truenature of the dispute between the parties. They submit they are amending discreteaspects of the pleadings, dealing with the new evidence which arose during the trial.There were also contentious damaged elements to the house that were omitted fromthe original statement of claim and should have been part of the "true issues of theclaim" to be dealt with. The plaintiffs say there is no prejudice here, because the issueis whether there is landslip damage or not and all the damage now claimed is inevidence, despite its absence in the first pleading.[21] IAG opposes leave on the following grounds:(a) There can be no amended pleading after the close of pleadings datewithout leave of the Court. No leave had been sought by the plaintiffs.The amended statement of claim was furnished at the closing of theplaintiffs' oral submissions.(b) There has been no opportunity to respond to the amendment applicationproperly, without a written application and grounds.(c) It is a whole new claim. It is not bringing "up to date" information only,under r 7.7(2)(b).(d) The amended claim was calculated to cause prejudice – ensuring thedefendants were unable to "respond to the new matters raised, arguetheir significance, refer to relevant evidence or lack thereof, and addressgenerally the change in direction."[22] EQC also opposes leave on the same grounds as IAG, but distils its oppositionon the basis of the three "insurmountable hurdles":(a) injustice, because the ability of the defendants to respond has beenprejudiced and the late amendment was a deliberate tactical decision onthe part of the plaintiffs;(b) prejudice, because the amended claim seeks to introduce new elementsof damage to the garage and the house, re-plead an abandoned cause ofaction and substantially increase the quantum; and(c) delay, because the trial will need to be recommenced.Analysis[23] In opening the case for the plaintiffs, Mr Shand claimed that damage hadoccurred to the Goodiers' house, as part of the building claim, over and above the fourelements pleaded at paragraph [11(3)–(6)] of the plaintiffs' statement of claim. Theadditional items of damage included cracking to the firebox; leaking roof; cracks tointernal wall linings; sticking doors and windows; and bowing of the bay window postin the dining room. The plaintiffs adduced evidence in respect of the additional items,over and above the pleaded claims, and the defendants cross-examined and calledevidence in respect of those items as well.[24] During the hearing, Mr Shand sought to adduce new evidence, which had notbeen briefed or pleaded, from Mr Hunt, who visited the Goodiers' house before hisevidence commenced and while Mr Csiba, the plaintiffs' engineer, was still giving hisevidence in re-examination. Mr Hunt took photographs of various aspects of thehouse, but most importantly, gave evidence about his discovery of a void around thegarage pile in the southwest corner, which he said demonstrated that the pile had beenundermined and was not in a solid foundation.[25] Although there was no formal application for leave, I granted leave to theplaintiffs to adduce Mr Hunt's additional evidence, over the defendants' objections, onthe basis that the defendants had an opportunity to reinspect the property and give suchadditional evidence as they saw fit.[26] The defendants took that opportunity and re-briefed the evidence of theirengineer, Mr Smith, to deal with Mr Hunt's allegations, that the southwest garage pilewas not in a solid foundation and had been undermined, as well as other matters newlyraised in Mr Hunt's evidence.[27] In closing, the defendants were highly critical of the plaintiffs' pleadings,alluding to the additional matters canvassed in the plaintiffs' opening and theallegations of damage arising through the trial, none of which had been pleaded noramended prior to the plaintiffs' closing submissions. Each of the defendants carefullytraversed in their closing submissions the additional allegations of damage, whicharose either at the commencement of the trial or during it, and which still had notresulted in any amended pleadings.[28] As noted at paragraph [2], after all counsel had delivered their closingsubmissions, Mr Shand handed up an amended statement of claim at 5.15 pm on thelast day of the hearing of this matter, to "bring the pleadings up to date" with theevidence the Court had heard.[29] I have set out the parties' positions and the relevant legal principles above.[30] I turn, then, to the High Court Rules. The rules make clear that an amendedpleading cannot be filed after the close of pleadings date, without the leave of a Judge.9However, a pleading that "merely brings up to date the information before the court",10or an application for leave to file an amended pleading after the close of pleadingsdate, or an application for amendment of a defect or an error under r 1.9 is not governedby r 7.7(1). Under r 1.9(1), the Court may, after the trial of any proceeding, amendany defects and errors in the pleadings, whether or not there is anything in writing toamend.[31] Further, under r 1.9(2), the Court may, at any stage of a proceeding, makeamendments to any pleading in the proceeding that are necessary for determining thereal controversy between the parties. Rule 1.9(4), however, makes this rule subject to9 High Court Rules 2016, r 7.7(1).10 Rule 7.7(2)(b).r 7.7, "which prohibits steps after the close of pleadings date without leave". Theeffect of r 1.9(4), however, is negated by r 7.7(2)(c), because an application foramendment of a defect or an error under r 1.9 is exempt from the requirement, that noamended pleading may be filed after the close of pleadings date without the leave ofa Judge.[32] In this case, the new pleading does not amend any error in the pleadings, nordoes it seek to amend any defects, as such. It is instead a pleading that purports toprincipally bring up to date "the information before the Court" as provided inr 7.7(2)(b). The pleading also amends the plaintiffs' claims for damages, with newestimated costings for remedial work and a claim for general damages only againstEQC, in respect of the second cause of action under s 19 of the EarthquakeCommission Act 1993 (EQC Act).[33] The amended pleading falls into three categories for consideration:(a) Items of damage, which were the subject of evidence-in-chief, cross-examination, and re-examination during the trial.(b) Claims for remediation of the dwelling and external features "on theircurrent site", together with relief sought against EQC for furtherremediation of the dwelling and against IAG for remediation to thedwelling and "external features".(c) In relation to the second cause of action, under s 19 of the EQC Act, aclaim for general damages of $50,000 (as well as interest and costsonly). The relief sought for judgment in the sum of $39,250 has beenabandoned.[34] I turn, then, to consider each of those categories in relation to the High CourtRules and the legal principles from the authorities.Category 1 – proposed new items of damage[35] The new proposed items of damage have all been the subject of evidenceduring the trial and a number of those elements, such as the belated introduction of"lateral movement" of the garage slab and the "garage floor and foundationssubsiding" arise as a result of the belated investigation of the house property duringthe trial. The defendants claim that if these items had been properly pleaded, furtherparticulars could have been sought at an earlier stage and further (or more extensive)evidence called on the issues.[36] Other items, Mr Raymond submits, do not necessitate an amendment, as theissue is before the Court in relation to the original, more general, pleading of either"floor dislevelment" or "differential settlement of the dwelling's floors andfoundations". He submits that paragraph [11(32)] "driveway and walkway collapsed"is potentially significant, because it is a departure from the original pleading that therehad been an evacuation of land. However, he submits that it is unnecessary to amend,as the substantive issue is before the Court.[37] I am cognisant of the defendants' criticism of the plaintiffs that their statementof claim was not amended to align with the evidential allegations during the trial orbefore final submissions, and the defendants' strong objection to the amendment onthe grounds that it would be unjust, prejudiced, and likely to cause delay.[38] I have been concerned throughout the trial that the additional evidence, forwhich I granted leave to adduce, contained allegations and claims that were notpleaded and I indicated to Mr Shand that the pleadings may need to be reviewed. Myconcern at the time was that if the defendants were prejudiced by the late introductionof new evidence and claims, and needed more time to deal with the evidence, then Iwas minded to grant such additional time as the defendants needed.[39] I have considered carefully the defendants' submissions on the interests ofjustice in this case and any consequential prejudice to the defendants, in being able toproperly defend the plaintiffs' additional allegations. In striking a balance of theinterests of justice to the plaintiffs to have their full controversy before the Court, asopposed to refusing the amendment on the additional items of damage because ofprejudice, I consider that it would be somewhat artificial for the Court to refuse theamendments to the pleadings in respect of the items in category 1. I take the view thatthese issues are before the Court, largely as a result of the evidence that was adducedduring the hearing and will require a final determination.[40] Unlike the respondents in Canterbury Medical Officer of Health, thedefendants have had an opportunity to present submissions on these additional itemsof damage, which they carefully traversed in their final submissions. Further, Iconsider the amendments sought here are not as fundamental as the change in positionof the appellants in the appeal hearing before Gendall J in that case.[41] Turning, then, to the High Court Rules, I consider that these amendmentssought in category 1 are a combination of a pleading that brings up to date theinformation before the Court, as r 7.7(2)(b) provides, and in part, amends the plaintiffs'pleading, to contain the real controversy between the parties, as r 1.9(2) provides.[42] On a strict reading of both rules 7.7 and 1.9, it appears to me that although theyare contradictory and circular, a pleading that updates the information before the Court(r 7.7(2)(b)), and/or contains the real controversy between the parties (r 1.9(2)) comeswithin the exemption of r 7.7(2), which does not require the leave of the Judge, afterthe close of pleadings date. The distinction, however, is somewhat academic. A rulingon the proposed amendment of pleadings here inevitably involves a Judge's decision,in any event.[43] I note that in r 1.9(2), the Court may make amendments to any pleading on itsown initiative, which implies that a Judge inevitably will need to make a ruling onamendments to pleadings after the close of pleadings date.[44] I have reached the view that it is in the interests of justice that the pleadingshere reflect the full controversy between the parties, and the elements of the claims,adduced in evidence during the trial.[45] There are, however, two further considerations. The first is prejudice, and thesecond is delay. In granting leave to permit the proposed amendments in the firstcategory, I do so on the basis that the defendants must have an adequate and properopportunity to address any of the new items of damage pleaded, either by way ofevidence or by further submission. It has been unsatisfactory that the originalpleadings did not foreshadow the extent of the detail of damage, which became evidentin the plaintiffs' reply briefs, shortly before trial, or were not amended during the trial,to reflect the claims and the evidence adduced in support of them. I therefore directthat the defendants are to file memoranda, setting out the further time required foreither the hearing of further evidence and/or further submissions.[46] I deal briefly with delay. This matter was set down for 10 days in Whanganuiand it became clear, during the hearing, that this was woefully inadequate to deal withthe evidence foreshadowed by way of briefs before the trial and extended by theadditional evidence during the trial. A further week was scheduled for hearing inWellington. In total, the hearing of the trial together with submissions has taken 15days. In itemising the days of hearing, I do not want to underestimate the importanceof the additional evidence regarding the southwest pile of the garage corner, asdiscovered and adduced by Mr Hunt. As a result of his evidence, which was acceptedprofessionally and appropriately by the defendants, the Court was given anopportunity to hear evidence of the actual position, regarding the southwest foundationunder the garage. The additional evidence inevitably caused further hearing time.[47] However, coming as it did during the trial, the defendants had to respond underpressure and did so, re-briefing their principal expert and further witnessesaccordingly. I consider, therefore, that delay in this case is not a critical factor. It ismore important that the parties have every opportunity to address the evidenceproperly, and for that reason I extend to the parties a further opportunity to adducefurther evidence or make further submissions, as I have outlined above.Category 2 – Remediation costs and damages[48] The second category involves amendments to pleadings with adjusted costs ofremediation to the dwelling and to "the external features on their current site". It alsoincludes the amendments to the first cause of action against EQC, under s 18 of theEQC Act, reducing the claim from $77,091.79 to $76,709.79. In relation to the thirdcause of action against IAG for breach of obligations, the claim is now a further$369,972.95 to reinstate the house and the external features of the land, includingrepairs to the driveway and landscaping costs.[49] During the trial, when Mr Hunt was giving his evidence, he had revised theplaintiffs' claim for remedial costs. The revision of costs was substantial and were notthe subject of any application to amend the pleading prior to his evidence being given.[50] The defendants strongly objected to the evidence being adduced, as thedefendants were in no position to properly cross-examine Mr Hunt.[51] I upheld the defendants' objections that the evidence sought to be introducedby Mr Hunt should not be adduced at that time at the hearing, because of the exigenciesof time and the position in which IAG had been placed. IAG considered Mr Hunt'soriginal costings were reasonable, and was not intending to challenge them. IAG werein no position to defend and undertake any cross-examination on revised costings, justpresented.[52] For those reasons, I adjourned the evidence on damages for a further hearing.I made the following ruling:11adjourning the evidence on the revised costings of remediation to a furtherhearing, following my determination on liability, when all parties can addressthe appropriate remediation, and address quantum following my liabilitydetermination at a separate hearing.[53] Mr Raymond's submission that Mr Hunt's costings were ruled inadmissible is,therefore, not correct. The evidence was not to be adduced at this part of the hearinguntil liability had been determined.[54] The proposed amended costings now provide the defendants the detail and theelements of the further relief claimed by the plaintiffs, depending on the outcome ofliability. It is appropriate, therefore, that the revised costs are properly pleaded andcan be the subject of further evidence and hearing, once liability has been determined.11 Goodier v Earthquake Commission (Ruling 2 of Cull J) HC Whanganui CIV-2016-483-16, 1October 2018 at [4(iii)].[55] I therefore grant the amendment of the category 2 pleadings.Category 3 – s 19 claim for general damages[56] The amendment in the third category relates to the second cause of actionagainst EQC, which is the plaintiffs' claim for general damages for distress, arisingout of their claim in respect of residential land, including all retaining walls and theirsupport systems within 60 metres of the building. EQC paid the plaintiffs $75,750 inrespect of their land claim. In opening the plaintiffs' case, Mr Shand abandoned thecause of action, accepting that EQC has paid the plaintiffs the maximum it can lawfullypay them for the land damaged, including their retaining walls.[57] The plaintiffs' amended pleading purports to reinstate the cause of action, byreframing the cause of action as one claiming relief for distress, mental anguish andinconvenience, abandoning the underlying cause of action for breach of ss 19, 27 and29 of the EQC Act. The proposed relief is for general damages, interest and costs.[58] There are two fundamental flaws in the plaintiffs seeking this amendment. Thefirst is that the plaintiffs have abandoned this cause of action at the commencement ofthe hearing, and the trial has proceeded on that basis. The evidence and thesubmissions did not address the issues raised under s 19 of the EQC Act. It is now toolate for the plaintiffs to purport to reinstate the cause of action, after the trial hasfinished.[59] The second flaw is that neither interest nor costs can be obtained as a matter oflaw, where the underlying cause of action is abandoned. In those circumstances, ajudgment cannot be obtained.[60] In Jefford v Gee, Lord Denning reinforced the importance of judgment beinggiven, before interest can be awarded.12 In that case, the plaintiff took money held inCourt in satisfaction of a claim but sought interest. Lord Denning said:13He gets no interest because there is no judgment. The Act of 1934 only entitlesthe plaintiff to interest when he gets a judgment.12 Jefford v Gee [1970] 2 QB 130 (CA).13 At 150.[61] Kós J in van Limberg v Earthquake Commission held that the Court's statutoryjurisdiction to award interest under s 87 of the Judicature Act 1908 is dependent onthe giving of a judgment.14 In van Limberg, no judgment was given (because EQChad paid his claim) but he sought interest, costs and disbursements. Because there wasno judgment, no interest or costs were awarded.[62] Although there does not appear to be any specific authority on the point, thesame applies logically to a claim for general damages without a judgment. As theplaintiffs plead, EQC paid $75,750 in land-related payments to "settle" the plaintiffs'claim. Although it was less than the plaintiffs' claim, they accepted at the beginningof the trial that EQC was not liable for a greater sum. There is no liability finding inrespect of which damages are payable.[63] Further, there was no evidence directed in support or against of a claim fordistress or anxiety. The plaintiffs have abandoned their second cause of action buthave not discontinued. However, the reframing of the second cause of action to simplyclaim general damages, interest and costs cannot be sustained, without a judgmentupholding liability against EQC.[64] The amendment sought in category 3 is neither granted leave nor permitted. Irule that the proposed second cause of action against the first defendant in the firstamended statement of claim is disallowed.Other matters[65] The defendants in their submissions have raised a number of matters which,although not specified in this judgment, I have taken into consideration. One of thesubmissions alleges that the plaintiffs have made a deliberate tactical decision not toamend earlier, causing more prejudice to the defendants. I am not in a position tomake a finding on this submission. For reasons which I have canvassed, including myview about any prejudice to the defendants by these late amendments, I consider thatany tactical manoeuvring by the plaintiffs – if that is indeed the position – must be met14 van Limberg v Earthquake Commission [2014] NZHC 502.by adequate time for the defendants to deal with any prejudice arising. I take thismatter no further.[66] The other matter that I invite the parties to consider is the closing replysubmission of Mr Shand, in relation to "the movement and the wetting" in the soilsunder the pavers around the wooden pole under the lounge. In response to my questionas to whether Mr Shand's submission on the soils beneath the pavers under the loungeis a landslip or a flooding problem, Mr Shand referred me to s 2 of the EQC Act andthe definition of "natural landslip". On reviewing the parties' submissions, this hasnot been addressed, apart from Mr Scott, in opening, who referred to those definitionsbut not in the context raised by Mr Shand.[67] In giving the parties an opportunity to address any further evidence and/orsubmissions arising out of the permitted amended pleadings, namely those in category1 and category 2, I also invite counsel to make any further submissions about thedefinition of "natural landslip" in the context of the soils below the pavers under thelounge and whether that is captured by the definition of "natural landslip".Result[68] The plaintiffs are permitted to amend their pleadings as contained in the firstamended statement of claim, in respect of the additional items of damage (category 1)and the amended costs as pleaded (category 2).[69] The amendments to the second cause of action against EQC in category 3 aredisallowed.[70] Counsel for the defendants are directed to file memoranda within 10 workingdays, identifying the further time they may need to hear further evidence and/orpresent submissions.[71] The plaintiffs, within a further five working days, shall advise the Courtwhether they wish to respond and, if so, the time required to do so.[72] Costs are reserved.Cull JSolicitors:Chapman Tripp, Wellington for the First DefendantDLA Piper New Zealand, Wellington for the Second Defendant