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.
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.
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.
Homeowners with fire insurance are covered under the Earthquake Commission Act 1993 for damage to house and land by a natural landslip. For house damage EQC pays the first $172,500 under s18 of the EQC Act. For land damage EQC pays up to specified amounts under s19 of the Act for land damage plus the indemnity value of any bridges, culverts and retaining walls. Separate house insurance policies may provide additional cover for retaining walls and the house. The application of the EQC Act to land damage is not straightforward. So expert advice will help.
In Birchs Road Ltd v EQC & anor [2019] 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 [2019] 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.
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.
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.
Auckland
PO Box 137243,
Parnell, 1052
Tel: +64 27 434 5489
grant@grantshand.co.nz
