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 Bruce & ors v IAG New Zealand Ltd & ors  NZHC 3051 the High Court ordered IAG to pay costs of $83,179 and disbursements of $121,899 to the Bruces subsequent to the High Court judgment in Bruce & ors v IAG New Zealand Ltd  NZHC 3444. IAG argued that the Bruces were not successful and in fact IAG had been successful. Mallon J disagreed and said that the Bruces were the successful party for the purposes of assessing costs. IAG delayed admitting defects, lost trial issues and ended up paying more than it had ever previously offered.
The High Court in Sleight v Beckia Holdings Ltd (in liq) & ors  NZHC 2851 has found all defendants liable for $389,848 being the costs to repair an earthquake damaged house at 24 Kinnaird Place, Christchurch to the policy standard of “when new”. IAG insured the earthquake damaged house. IAG purported to repair the house as part of its managed repair programme with Hawkins as the project manager. Hawkins, now in liquidation, was insured by QBE. Farrells, now known as Beckia, was the builder that did the repairs. The house was defectively repaired. The build contract for the repairs was between Sleight and Farrells, but it referred to IAG and Hawkins performing roles. The Court decided that the defendants were liable because the work done did not meet the policy standard and/or the standard required by the Consumer Guarantees Act. The Court did not award any general damages. Based on the written agreements between IAG and Hawkins, Iag was required to indemnify QBE for $260K of the judgment. This is an excellent result for homeowners. Likely to be appeals.
Owners of 12 units at 152 and 160 Salisbury St, Christchurch sued Vero Insurance seeking a declaration from the High Court that by reason of earthquake damage they were entitled to have the buildings rebuilt under their Vero insurance policy. Vero said the buildings could be repaired to meet the policy standard of”when new”. The High Court released its judgment in Body Corporate 335089 v Vero Insurance New Zealand Ltd  NZHC 2353 on 10 September 2020 more than a year after court hearing finished. The evidence for the owners failed to prove more than minimal earthquake damage by cracking and minor floor level changes. The argument that because the buildings have dropped was not of itself enough to lead to rebuild as relativities with floor levels, ground levels and service slopes could be maintained. So the Court refused to make the declaration sought by the owners. Costs will follow the event so this will be an expensive loss for the homeowners.
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 Bruce & ors v IAG New Zealand Ltd  NZCA 590 the Court of Appeal allowed the homeowners’ appeal and dismissed the IAG cross appeal in a case about IAG’s post earthquake remedial work. IAG elected to repair the house and spent $1.4M doing so. IAG’s engaged builder, Jim the Builder, did not repair the house so that it was “as when new”. At issue at trial were the floor levels, wall verticality and internal finishes. The High Court Judge, Mallon J, found that IAG had not restored to the three items to the policy standard, but puported to limit the remedy available to the homeowners. The Court of Appeal set aside the limits on recovery and dismissed the cross appeal about the lack of damage by wall leans. There is to be a second hearing about remediation and cost of remediation. This case is important for its finding that IAG is liable for the defaults of its builder when IAG elected to repair the house.
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.