By a judgment delivered 16 December 2021 by Osborne J in Ross v Southern Response Earthquake Services Ltd  NZHC the High Court has granted the representative plaintiffs (Ross) permission to end the group action against Southern Response on terms that the Southern Response package is open to eligible homeowners until at least April 2023; dissatisfied homeowners can sue Southern Response without Southern Response raising a limitation defence for a further 18 months after discontinuance and oversight/reporting by a committee to the Court. All eligible homeowners are now free to take up the package offer and the $2000 legal fee subsidy or to sue Southern Response. Southern Response is to pay a confidential sum of money to the litigation funder CFA.
In the Sleight v Beckia Holdings Ltd & ors  NZHC 456 judgment about costs and interest Gendall J ordered IAG to pay interest at 5% pa from June 2015 under s87 of the Judicature Act 1908 on the costs to repair the Sleights’ house at 24 Kinnaird Place, Christchurch. He ordered interest from the date that IAG was made aware that its original earthquake repairs were defective in June 2015. He awarded interest on the cost of the repairs as quantified in mid/late 2020. Homeowners with failed earthquake repairs ought to seek interest from when EQC/Insurer should have know about the problem. As the Sleights commenced the proceeding pre 1 January 2018 the Interest on Money Claims Act 2016 did not apply. IAG has appealed this judgment.
In its first substantive judgment in Houston v Southern Response Earthquake Services CEI-OOXX-2019 the Canterbury Earthquakes Insurance Tribunal has shown that it will be a waste of time and money for homeowners. The decision by the chairperson of the tribunal, a former family court judge, CP Somerville, fails to follow an applicable Court of Appeal case about the policy standard of remediation and does not decide any super-structure repair scope or whether the insurer strategy complies with the Building code. Mr Somerville surprisingly approves a jack/pack repair for a house with a heavy roof and heavy cladding on TC3 land adjacent to a stream with a floor level differential of 72mm as being “as new”. Mr Somerville refused to get involved in deciding technical engineering issues and building code compliance. These are the issues in most earthquake disputes. Hopefully the judgment is successfully appealed.
In Pinot Properties Ltd v Vero Insurance New Zealand Ltd  NZHC 2244 the High Court (Osborne J) dismissed an application to transfer an earthquake court proceeding to the Earthquake Insurance Tribunal as the Court decided that the relevant building at 205 Manchester St was not a residential building, nor residential property, so was not eligible. The Court reached this conclusion notwithstanding that EQC paid claim(s) and the properties had been used for residential purposes. Vero insured the property under a commercial property.
In Dewes & ors v IAG New Zealand Ltd & ors  NZHC 2270 the High Court (Lester AJ) considered an application by home owners to transfer a claim about a defectively repaired earthquake damaged house where IAG had joined Hawkins and Hawkins’ insurer, QBE. QBE did not want the claim against it transferred to the Tribunal and said that it was a separate proceeding not within the Tribunal jurisdiction. The High Court disagreed with QBE and said the entire dispute could be transferred, which it did.
In Dodds v Southern Response Earthquake Services Ltd  NZHC 2016 the High Court (Gendall J) ordered Southern Response to pay Dodds $178,894.30 plus interest from 23 December 2013 because Southern Response misrepresented the cost to rebuild the house at 9 Errol Lane, Huntsbury damaged in the earthquake on 22 February 2011. Southern Response provided a Detailed Repair/rebuild Analysis to Dodds that excluded demolition, professional fees and contingency that totalled $895,937.78 whilst at the same having a full costing at $1,186,920.75 that it did not provide to Dodds. Dodds entered into a settlement agreement based on the lesser figure. The High Court decided that SR was guilty of misrepresenting the rebuild cost and engaging in misleading and deceptive conduct. It also said that Southern Response breached good faith obligations. The High Court ordered Southern Response to pay the difference in the 2 costings less the cost of demolition that Southern Response paid and some Arrow costs. It did not award general damages.
On 15 August 2019 the Government announced a policy that allows owners of on-sold over-cap properties in Canterbury to apply for an ex gratia Government payment to have their homes repaired.
If you’ve bought a home in Canterbury and discovered that it is damaged over the EQC cap, you may be eligible for an ex gratia payment to cover the cost of repair.
Under the policy, you will have twelve months (no later than 14 August 2020) to register your interest for the ex gratia payment. After that time, the policy will not be available.
If you qualify you may be able to receive an ex gratia payment equal to the agreed cost of repair.
Here is a link to information with an excellent Q & A section.
This decision is an excellent one for those owners.
In Biggins & anor v Southern Response Earthquake Services Ltd  NZDC 25609 the District Court considered an application by an insured home owner for summary judgment for the cost of a carport that was not included when SR rebuilt the insured’s house. There were also claims for general damages and the owners’ share of liability for a common driveway. The insured house had a carport. The house rebuilt by Southern Response after the earthquakes did not. SR said it was not liable because the cost of a carport was included in the costing for the rebuilt house. Southern Response lost. There were no documents that supported the SR position. SR also lost on the driveway share issue, but avoided a liability for general damages.
In Myall v Tower Insurance Ltd  NZHC 528 the High Court (Dunningham J) considered whether an insured should account for interest to the insurer on a partial claim payment; whether Tower must pay the full replacement value in cash now and any interest payable on the full replacement value fixed by the Court. Myall insured his house at 81 Ainsley Terrace, Christchurch for a floor area of 650m2. The house was damaged beyond repair in the earthquakes. It turned out the house was actually 799m2. After hearings in the High Court and Court of Appeal the full replacement value was fixed/agreed to be $5,273,021.71. Tower made interim payments of $1,359,000 in January 2012 and $1,612,644.12 in April 2013. It asked the Court to order Myall to account for interest of $431,138.71 on the part payments when/if Tower ultimately paid full replacement value. The Court declined to order interest as the policy did not provide for it and Tower did not specify it before it made the payments. Mr Myall said that because Tower had elected to cash settle it was liable to pay now even though Mr Myall has not replaced the house. The Court disagreed and said that the election was made under the policy which required the insured to reinstate, or replace, the house before payment. The Court did not consider the argument that any replacement house had to be in NZ. It did not award interest on the full replacement value. The judgment also records that Mr Myall is to pay Tower $32,000 for costs on the first High Court hearing.