Grant Cameron has emulated the lawyers that ran He and Sadat by losing the case of Bligh v EQC & IAG New Zealand Ltd [2018] NZHC 2102.  Grant Cameron could not prove that there was earthquake damage, which is pretty fundamental to an earthquake claim.  Mr Bligh will now be liable for costs and disbursements to EQC and IAG that exceed the value of his house.  The costs award against Mr He was in excess of $500K.  EQC and IAG have a mortgage over Mr Bligh’s house for $20,000 each as security for costs.  Grant Cameron then has a mortgage for his fees and disbursements.  Any way it goes Mr Bligh will now lose his house.  As Justice Nation says in  para [430] Mr Bligh would have been much off if he had accepted offers in October 2016.  Grant Cameron took over acting for Ricky Bligh in October 2016 after we terminated Mr Bligh for misleading us, not co-operating and being unable to pay us after the funder terminated the funding agreement because Mr Bligh would not co-operate and settle the claim.  We did not charge anything for acting for 3 years.  It will be interesting to see whether Grant Cameron sells the Bligh house for fees on a case that he lost.

In a surprising decision in Kilduff & anor v Tower Insurance Ltd [2018] NZHC 2021 Gendall J ordered Tower Insurance to pay costs of $81,249 and disbursements of $122,515.20 in a case where Kilduff claimed $1,952,891 and only recovered $628,516 after a five day court hearing.  Prior to the court hearing Tower had offered Kilduff $650,000 in August 2017 and $734,000 in October 2017.  Both of these amounts exceeded the repair cost judgment of $628,516.  Nevertheless, Gendall J decided that Kilduff had been successful once he added on costs and disbursements to the judgment sum to get a total of $855,169.20.

Here is a link to the Canterbury Earthquakes Insurance Tribunal Bill introduced on 1 August 2018.  It appears to create a tribunal that is a replica of the Weathertight Homes Tribunal.  Notably the Tribunal can only consider claims by an original insured against EQC and/or any insurer.  The Act expressly does not apply if ownership of the property is transferred following the insured physical loss or damage.  The Tribunal has the power to direct parties to mediation and appoint independent experts. It also has the express power to restrict cross examination of witnesses and disallow the use of experts unless they are necessary.  A big negative is that the Tribunal is not empowered to award costs based on success, but can only award costs if there is proven bad faith, meritless allegations or unreasonable delay.  Any appeals are to the High Court, but only with leave of the High Court.  This Tribunal is about 7 years too late and repeats the errors that make the WHT a bad choice for many homeowners.  It also excludes the “on solds” that are the most prevalent claims now.  A positive is that it enables people to prosecute land claims cheaply without much risk of adverse costs.  Another query is why does the Act not apply to Kaikoura claims?

Here is Southern Response’s  28 June 2018 statement about enforcement of limitation defence(s) after 4 September 2018.  Southern Response had previously said that it would not enforce a limitation defence before 4 September 2018.  In its statement it says that after 4 September 2018 its position is that the limitation period runs from the date that Southern Response settles, declines, or advises in writing a decision on the claim.  This is similar to the EQC and Tower position.

In Robin v IAG & ors [2018] NZHC 1464 the High Court (Gendall J) reversed the decision of Matthews AJ in Robin v IAG & ors [2018] NZHC 204 about joining as defendants people involved in post earthquake repair work.  Ms Robin owned 214 Fitzgerald Avenue.  She sued IAG alleging that the earthquake repair work done did not restore the house to the policy standard.  She also sued the manager of the repair work, Canterbury Reconstruction Ltd.  IAG joined Hawkins who monitored/assessed the remedial work as a third party.  IAG then asked the Court to join as defendants Houselifters Ltd, Max Contracts Ltd and the Christchurch City Council.  Ms Robin opposed the joinder.  Gendall J said that Matthews AJ was wrong not to join them as defendants.  They were involved in the allegedly defective work and no other party could/would  join them as third parties.  It would not be onerous for Ms Robin to formulate and prove the claim(s) given she had sued CRL.

Southern Response (formerly AMI Insurance) had a practice of maintaining duplicate remedial costings for earthquake damaged houses.  A “customer” version and an “office” version.  The “customer” version did not include demolition, professional fees and contingency.  The “office” version included these costings.  Southern Response concealed the “office” version with the effect that many people settled their insurance claim for less than their entitlement.  Rick and Anna Groen sued Southern Response in the High Court claiming breaches of the Fair Trading Act and duty of good faith.  The High Court in Groen v Southern Response [2018] NZHC 1025 recently considered the status of the legal advice Southern Response received in the context of witness statements and an upcoming trial.  The judgment contains a good summary of the issues.  The Court decided that Southern Response could edit witness statements and statement of defence to remove reference to legal advice, but if at trial it tried to rely on the legal advice for its conduct then it would waive privilege over the advice and must provide the advice.  There are likely thousands of people in the same situation as the Groens that also have claims against Southern Response.

In Xu & anor v IAG New Zealand Ltd [2018] NZCA 149 the Court of Appeal confirmed the High Court decision that under the insurance policy the reinstatement right under the policy was not transferable to a subsequent owner.  It was personal right that could not be assigned.  Because the original insured did not reinstate the house before selling it to the current owner there was no right to reinstatement costs.  Xu received indemnity value only.  The Court of Appeal followed its previous decision in Bryant.  It is now likely that Xu will try to have the Supreme Court consider the issue.  This judgment affects subsequent owners that may have bought a house with an assigned claim expecting to recover reinstatement costs.

The Supreme Court in Myall  v Tower Insurance Ltd [2018] NZSC 35 has refused an application by Mr Myall for leave to appeal the Court of Appeal decision about professional fees on a house rebuild and the apportionment of the rebuild cost based on under insurance.  It said that notwithstanding obvious errors by the High Court and Court of Appeal there was no question of general or public importance.