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.
In Young v Attorney General [2022] NZCA 391 the Court of Appeal on 23 August 2022 dismissed an appeal by Steven Young against the High Court judgment that the Crown was not liable to him in nuisance/trespass in relation to rocks that fell onto and remained on his Redcliffs property in the earthquake(s) on 22 February 2011. He claimed about $7M. The rocks came from Mr Young’s property (72%) and neighbours’ properties (28%). The Crown acquired the neighbouring properties in red zone offer(s) between 2012 and 2015. Mr Young rejected any Crown red zone offer(s). By the time the Crown acquired the neighbouring properties the Young property was already worth very little by reason of the previous rockfalls and zoning of property. The Court held that the Crown has met any liability to abate the nuisance by offering to pay Mr Young $2M in 2015 plus enabling him to keep insurance proceeds in 3 houses on the site. The order that Mr Young pay costs and disbursements of $329,093 to the Crown in the High Court was also confirmed.
By a judgment delivered 16 December 2021 by Osborne J in Ross v Southern Response Earthquake Services Ltd [2021] 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 [2020] 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 [2018] 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.
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