In QBE v Davern & IAG [2025] NZCA 310 the Court of Appeal dismissed QBE’s appeal against the High Court decision in Davern & IAG v QBE [2023[ NZHC 2146 that QBE was liable to pay $1,593,484.54 plus interest as building costs for the Daverns’ property in Redcliffs that was insured by IAG and rebuilt by IAG after the Canterbury earthquakes. QBE insured Hawkins who was responsible for scoping the original rebuild. Hawkins screwed up the sequencing of work in the original rebuild causing extra costs. The Daverns and IAG entered into a deed of settlement and assignment in 2018, pursuant to which IAG was subrogated to the Daverns’ rights, interests, claims, and remedies. Hence, the present contest was essentially between IAG (as the Daverns’insurer) and QBE (as Hawkins’ insurer). The Court decided that Hawkins had a positive independent obligation to update the overall scope of works for the rebuild project if it became obvious that required work had not been scoped, irrespective of whether a formal variation had been initiated by the builder or customer. Hawkins failed to provide or procure an updated scope of works for the Required Retaining Wall on the southwestern slope at any time prior to the house being substantially built (or indeed at any time prior to the 2012 Agreement terminating in December 2016) which was a breach of Hawkins’ updated scoping obligation in the 2012 Agreement. The Court dismissed the appeal.
Court of Appeal on Land Class Action
On 11 & 12 June 2025 the Court of Appeal heard appeals by EQC and the homeowners about the land class action certified in the High Court on 14 December 2023 as Freer & anor v EQC [2023] NZHC 3662. The High Court granted leave to appeal on 27 May 2024 in Freer & anor v EQC [2024] NZHC 1346 .
EQC asked for the certification to be set aside saying that the Mcevedy/Freer claim is/was meritless, statute barred and that they were not good representatives. McEvedy & Freer wanted the class increased to include owners whose land had Increased Flooding Vulnerability as well as assignees of claims and owners that had sold the land but kept the claim. McEvedy & Freer also wanted to be able to challenge the correctness of the 2014 declaratory judgment in EQC v ICNZ & ors [2014] NZHC 3138 that land is insured for indemnity value only. This was the subject of the judgment in Freer & anor v EQC [2023] NZHC 1301.
The Judges in the Court of Appeal were Courtney J, Ellis J and Campbell J. No predictions of when the judgment will be given.
In Pearce v NHC & anor [2024] NZHC 623 the High Court (Osborne J) dealt with a case stated from the Canterbury Earthquakes Insurance Tribunal about whether the homeowners’ claim against the insurer, MIS, was statute barred by the Limitation Act 2010. The 2010/2011 earthquakes damages the Pearces’ home. In November 2023 the Pearces’ lodged a claim in the CEIT. MIS said the claim was statute barred having been brought more than 6 years since the cause of action accrued. EQC/NHC determined the claim was over cap on 25 November 2022. The court decided that the primary period under section 11 of the Limitation Act 2010 begins on the date, following EQC’s advice that the applicants’ claim was over cap (25 November 2022), that represents the reasonable period for MIS to have assessed the applicants’ overcap claim and to have made payment of the amount due. So the claim was not statute barred.
On 19 February 2025 I presented at the Legalwise Seminar entitled “Insurance Law Intensive.” The topic was Property insurance round up- Floods, landslips and earthquake issues- A discussion of recent cases and current litigation as well as issues arising post natural disasters.
Here is a link to papers.
in Beca Carter v Wellington City Council [2024] NZSC 117 the Supreme Court decided that the 10 year limitation period under s393(2) Building Act 2024 did not apply to a claim for contribution under s17(1)(c) Law Reform Act 1936. So, WCC was entitled to seek contribution from Beca Carter to the claim brought against the WCC by the BNZ about damage to its building in the Kaikoura earthquake in 2016.
The High Court (Paulsen AJ) on 24 April 2024 in Freer & anor v EQC [2024] NZHC 912 granted both parties leave to appeal his previous judgments about certification of the class action. The homeowners, Freer & McEvedy, seek to enlarge the class to include IFV people and non-current owners; whereas EQC wants to avoid any class action. Hopefully the appeal is resolved within 12 months.
In the EQC on sold class action Mathias v EQC the High Court fixed the date for people to lodge a notice with the Court opting into the class action as 5pm on 22 September 2023. Some people lodged notices after the deadline. EQC opposed the late notice people being part of the class. In Mathias v EQC [2024] NZHC 533 the High Court (Lester AJ) dismissed the EQC opposition and extended the opt in date to the date that each individual notice was received by the Court. The extension of time was done under rule 1.19 of the High Court Rules as being in the interests of justice.
In Tadd Management Ltd v Weine & ors [2023] NZHC 764 the High Court (Gwynne J) decided that the vendor misrepresented the seismic rating of 134 Queens Drive Lower Hutt that it sold to the plaintiff in December 2017 for $1,227,000 at auction. The vendor based on a report from the third party, NZ Consulting Engineers Ltd, represented a 60% NBS rating and that the earthquake rating was “Good”. The court decided that this was a misrepresentation and also common mistake. It awarded the purchaser damages of $592,00 being the difference in value of the building as it was and as represented together with interest from the date of the purchase settlement. Weirdly the court did not enter judgment against the third party who was the source of the misrepresentation(s).
There is a class action against EQC in relation to Canterbury houses badly assessed/repaired by EQC after the Canterbury Earthquakes. There may be in excess of 70,000 eligible homeowners. Owners have to opt in to the proceeding by 22 September 2023. A copy of the opt in notice is here. The website for the class action is www.eqconsold.co.nz.
EQC appears to have short paid about 23,000 homeowners for land damage from the Canterbury Earthquakes of 2010/2011. Rather than pay the cost to repair the land it paid an alleged diminution in value. This is a difference of about $140,000 for the average homeowner. Two homeowners have sued EQC and asked the High Court to permit them to represent other similar homeowners. The Christchurch High Court will hear the representative application on 22 & 23 February 2023. The claim is funded by a litigation funder. Here is a website about the claim. EQC appears to have forecast a liability of about $2.1B for land claims but paid out only about $500M.
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