After the January/February 2023 weather events Auckland Council created a process/policy of property categorisation to enable the buyout of properties that had intolerable risk to life in future events with 1% AEP. These are known as category 3 properties. There are/were specific criteria. I have commenced judicial review proceedings against the Auckland Council for its categorisation of a Huapai property as category 1 when it ought to have been category 3. It is virtually the only house left on the street as neighbouring houses are category 3. Looks like the Council have used incorrect facts for assessment, changed their criteria part way through assessment without an evidential basis to save money, acted unreasonably and not treated homeowners the same way. Here is the statement of claim.
In Sole v Hutton & ors [2025] NZHC 430 the High Court (Blanchard J) decided that the vendors of 3A in the Belle Mer apartments at 53 Marine Parade, Mt Maunganui , were liable to pay the purchasers $926,806.48 for breach of contractual warranty and misrepresentation under s 35 of the Contract and Commercial Law Act 2017. The evidence was that in 2014 the body corporate obtained reports about leaky defects with the building. The vendors owned the property in 2014 and knew about the minutes, but said they forgot about them. Clause 11.2(7) of the sale agreement stated that the vendor has no knowledge or notice of any fact which might give rise to or indicate the possibility of:(a) the owner or the purchaser incurring any other liability under any provision of [the UTA] or the Unit Titles Act 1972; or (b) any proceedings being instituted by or against the body corporate. The Court reduced the repair costs claimed by 30% for betterment.
After the extreme weather events in 2023 the Auckland Council established a process for categorising properties for eligibility to council compensation/buy outs. It is a voluntary process where homeowners must complete a registration form by 30 September 2024. It appears that process is slow. Here is the 9 may 2024 Council update. A total of 1307 homes have received a final property categorisation with 405 classed as Category 3 and eligible for a buy-out (as of 9 May). 210 Category 3 homeowners had received or accepted a buy-out offer, and 63 properties had completed their sale and purchase agreements (as of 3 May). Overall, 2812 property owners have registered for the categorisation scheme out of 7389 known impacted properties (as of 3 May). If homeowners are dissatisfied with the categorisation process/outcome they can apply to the council to review it. Then there is always judicial review by the High Court.
on 22 September 2023 at 5pm time expires for eligible class members to opt into the Mathias v EQC class action. It is to enable purchasers of earthquake damaged houses to get cash compensation from EQC for EQC’s defective assessments and/or repair work. The claims are funded by a litigation funder. Here is a link to a website about the claims.
In Local Government Mutual Funds Trustee Ltd v Napier City Council [2023] NZSC 97 the Supreme Court dismissed the LGMFT appeal about its liability for a $12M building defects settlement paid by the Council about Waterfront Apartments. The relevant insurance policy excluded liability from weathertightness defects. The apartment owners alleged both weathertightness defects and non-weathertightness defects. About $4.4M of the $12M paid related solely to non-weathertightness defects. In this situation, where the Council faced liability for separate and divisible loss arising from breaches of the weathertightness and non-weathertightness aspects of the Building Code, only the former are excluded from cover notwithstanding that the claim was presented on a mixed basis. The Wayne Tank principle that where there were two “equally efficient” causes of the loss, one within the policy and the other excluded, the exclusion applies.does not assist RiskPool here. It is irrelevant to liabilities which, like the fire defects, result solely from non-weathertightness issues simply because those liabilities are a result (and only a result) of a non-excluded cause. In contrast to the position in Wayne Tank, it is possible in this case to apportion loss as between that caused by weathertightness (or by a mixture of weathertightness and other issues) and that not caused by weathertightness.
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.
The 2016 Kaikoura earthquake damaged the BNZ’s building on Waterloo Quay, Wellington so that it required demolition. In August 2019 BNZ sued the Wellington City Council in negligence for losses of $101M caused by loss of the building. The Council joined Beca Carter seeking contribution under the Law Reform Act 1936 and for negligence based on Beca’s role in design/construction of the building. In Beca Carter v WCC [2022] NZCA 624 the Court of Appeal upheld the High Court decision that refused to strike out/summary judgment the claim against Beca Carter for limitation. The Court of Appeal decided that the Council’s contribution claim against Beca Carter was not subject to the 10 year longstop in the Building Act 2004, but was governed by s34 Limitation Act 2010 that provided a 2 year limitation period post determination of the Council’s liability to BNZ which had not yet been determined. The cause of action in contribution accrues on a finding of liability. Separately the Court said that there was conduct of Beca Carter within 10 years of the negligence claim by the Council so the Court could not enter summary judgment.
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.
In Napier City Council v LGMFL [2022] NZCA 422 the Court of Appeal allowed an appeal by the Council on its ability to recover from its insurer (“Risk Pool”) for its contribution of $12.355M to settle a leaky building claim about Waterfront Apartments. The Waterfront plaintiffs claimed about $20M of which $16.2M comprised costs of remediation. The relevant insurance policy excluded cover for claims about weathertightness. The insurance policy did cover non-weathertightness defects. Contrary to the High Court decision the Court of Appeal decided that the exclusion removed cover only for Council liability from weathertightness defects. The Council could recover from Risk Pool for non-weathertighness defects. The dispute was sent back to the High Court for it to apportion the settlement between weathertight and non-weathertight defects and to determine whether the settlement was reasonable.
The High Court in Mathias v EQC [2022] NZHC 2097 has approved a class action against EQC for on sold properties. These are earthquake damaged houses with EQC claims sold since the earthquakes in 2010/2011. In 2019 EQC estimated that there were more than 50,000 on sold properties. Here is a link to the class action website. Details of how to opt in to the claim are still being finalised. The claim will enable owners to get unconditional cash from EQC for rebuild or repair costs.
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