Vero, AMI and AA Insurance refused to pay $4.9M of rental hire costs claimed by not at fault drivers where their insured drivers were at fault.  Right to Drive funded the rental cars in return for rights against the insured driver(s) and their insurers.  It sued to recover from the insurers.  The insurers denied liability for many reasons.  The insurers lost in the High Court.  In Frucor Beverages Ltd & ors v Blumberg & ors [2019] NZCA 547 the Court of Appeal dismissed the insurers’ appeal(s) and commented about the lack of merit of the appeals.  Previous Australian and United Kingdom cases were similar.  The Court of Appeal makes very critical comments about the insurers in paras [151] to [162] of the judgment.

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.

In Pinot Properties Ltd v Vero Insurance New Zealand Ltd [2019] NZHC 2244 the High Court (Osborne J) dismissed an application to transfer an earthquake court proceeding to the Earthquake Insurance Tribunal as the Court decided that the relevant building at 205 Manchester St was not a residential building, nor residential property, so was not eligible.  The Court reached this conclusion notwithstanding that EQC paid claim(s) and the properties had been used for residential purposes.  Vero insured the property under a commercial property.

In Dewes & ors v IAG New Zealand Ltd & ors [2019] 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 [2018] 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 [2019] 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 [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.

In Dodds v Southern Response Earthquake Services Ltd [2019] NZHC 2016 the High Court (Gendall J) ordered Southern Response to pay Dodds $178,894.30 plus interest from 23 December 2013 because Southern Response misrepresented the cost to rebuild the house at 9 Errol Lane, Huntsbury damaged in the earthquake on 22 February 2011.  Southern Response provided a Detailed Repair/rebuild Analysis to Dodds that excluded demolition, professional fees and contingency that totalled $895,937.78 whilst at the same having a full costing at $1,186,920.75 that it did not provide to Dodds.  Dodds entered into a settlement agreement based  on the lesser figure.   The High Court decided that SR was guilty of misrepresenting the rebuild cost and engaging in misleading and deceptive conduct.  It also said that Southern Response breached good faith obligations.  The High Court ordered Southern Response to pay the difference in the 2 costings less the cost of demolition that Southern Response paid and some Arrow costs.  It did not award general damages.

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.