The Court of Appeal dismissed the appeal by Xiaoming He in relation to earthquake damage to his house at 377 Selwyn Street, Christchurch.  In He v EQC & anor [2019] NZCA 373 the Court of Appeal said that the High Court was correct to find that Mr He had not proven earthquake damage to his property.  The damage appears to have pre-dated the earthquakes and evidence from the tenant to that effect did not assist Mr He.

Kitchen v AA Insurance Ltd [2019] NZHC 1902 is the second High Court judgment where the High Court has granted an application to transfer a High Court earthquake proceeding over the objection of the defendant insurance company.  In this proceeding the Court transferred the claim notwithstanding that there was a 10 day Court trial scheduled for December 2019.  It said that it was in the interests of justice to transfer the claim as court fees would be avoided, there would be no duplication of work, the Tribunal was more flexible and any complexity could be dealt with by the Tribunal.

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 Tower Insurance ltd & anor v Nicon Ltd [2019] NZCA 332 the Court of Appeal dismissed Tower’s appeal of a High Court decision that it was obligated to offer demolition work to Nicon where Nicon had done a demolition assessment.  Nicon said that it did 1376 assessments, but was only allocated 186 demolition jobs.  It claimed lost income of more than $4M from Tower/Stream.  The issue was whether a written heads of agreement between Nicon and Stream/Tower was a legally binding contract.  Tower said it was not binding.  The High Court and Court of Appeal disagreed.  There will now be a trial about the amount of money Tower/Stream must pay Nicon for lost demolition work.

Busby v IAG New Zealand Ltd [2019] NZHC 1852 is the first High Court decision on an application by a homeowner to transfer a High Court proceeding to the Canterbury Earthquakes Insurance Tribunal.  The Busbys said they were worn out by cost and delay of the Court process.  IAG said that the proceeding raised issues about land damage that was not within the jurisdiction of the Tribunal.  Lester AJ decided that it was in the interests of justice to transfer the proceeding.

In a puzzling result, Dunningham J in Moore v IAG New Zealand Ltd [2019] NZHC 1549 decided that the earthquakes of 4 September 2010, 22 February 2011 and 13 June 2011 had the same cause and were one event for the purposes of the IAG policy.  The effect was that Mr Moore could  only recover the total sum insured of $2,500,000 plus gst once notwithstanding there was damage in each event and remediation was in excess of $4M.  This is yet another insurer favourable judgment out of the High Court in Christchurch.

In Biggins & anor v Southern Response Earthquake Services Ltd [2018] 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.

Fitzgerald & ors v IAG New Zealand Ltd [2018] NZHC 3447 was a High Court judgment by Gendall J about the repairability of a rubble foundation damaged in earthquake(s).  The Fitzgeralds appealed the judgment to the Court of Appeal, but also applied to have Gendall J recall his judgment on the grounds that the Court had relied upon incorrect evidence by IAG’s expert engineer, Craig Lewis, about similar repair strategies being performed on other houses in Christchurch.  Apparently one house relied upon by Mr Lewis was TC2 and not TC3 and did not get a building consent as an exemption was granted.  In Fitzgerald & ors v IAG New Zealand [2019] NZHC 632 The High Court (Gendall J) dismissed the recall application.  The judgment says that it relied on evidence other than from Mr Lewis and expressly referred to the failure to cross examine IAG’s builder who said he had seen the repair done 20 times and evidence from Fitzgerald’s own geotechnical engineer about consent.  It also noted it would generally not be appropriate for a Court to recall its judgment once an appeal had been lodged.

Notwithstanding the success of the Greater Christchurch Claims Resolution Service it appears the Government is proceeding with the establishment of the Canterbury Earthquakes Tribunal.  Based on the version of the bill reported from the House on 9 May 2019 the goal is for the Tribunal to exist from 10 June 2019.  The Tribunal still cannot deal with “on solds” being houses sold after the relevant earthquake(s).  Unlike the GCCRS the decisions of the Tribunal are public.  The Tribunal still has restrictions on the ability to award costs.