In Birchs Road Ltd v EQC & anor  NZHC 2439 the High Court (DunninghamJ) considered an application to transfer a court proceeding in process for 3 years with a trial date commencing 21 October 2019 where the defendants had concerns about their ability to recover costs from the homeowner if the claim was transferred to the Earthquake Tribunal. In Fraser v EQC & anor  NZHC 2768 the High Court (Lester AJ) decided that the High Court retained jurisdiction to deal with costs in respect of a proceeding transferred to the Earthquake Tribunal. Fraser is notable for a wasted costs order against the homeowner for changing lawyers and engineers.
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 Settlers Crescent Partnership v IAG New Zealand Ltd  NZHC 2775 the owners of 4 adjoining buildings at 14 Settlers Crescent, Ferrymead (funded by Risk Worldwide) sued to recover for damage in the June 2011 earthquake notwithstanding that they had cash settled for $10,233,973.80 with IAG for damage to the buildings in the September 2010 and February 2011 earthquakes on the basis that those buildings were recommended for demolition as being destroyed. The Court in a judgment 25 October 2018 unsurprisingly found that the partnership suffered no further loss in the June 2011 and the claim failed. A year later the High Court on 17 September 2019 in Settlers Crescent Partnership v IAG New Zealand Ltd  NZHC 2341 ordered the owners to pay costs of $51,067 together with disbursements of $111,147.76. IAG had claimed $297,621.72.
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  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  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  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  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  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.
Here is the Grant Shand EQC & Insurance Newsletter #22.
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