The Court of Appeal decision in Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249 said that for a person to recover costs under the High Court Rules that person needed to have personally incurred those costs with a lawyer and been invoiced for them by that lawyer.  JAFL was concerned with a claim for costs by a barrister acting for himself.  Unsuccessful defendants in claims brought via litigation funders have argued since JAFL that because the legal costs are not incurred by the actual party then no costs are recoverable.  Fortunately the Supreme Court in McGuire v Secretary for Justice [2018] NZSC 116 has said that JAFL was wrongly decided.

In Fitzgerald & ors v IAG New Zealand Ltd [2018] NZHC 3447 the High Court (Gendall J) considered whether IAG’s proposal to epoxy rubble foundation cracks and jack/pack piles/perimeter to relevel a floor with a differential of 58mm complied with its insurance policy obligation to reinstate the earthquake damaged house to a condition as similar as possible to when it was new.  The Fitzgeralds own 111 Innes Road, St Albans.  It is TC3.  The house built in the 1920’s is 2 storey with timber frame, weatherboard cladding and metal roof built on an unreinforced rubble perimeter foundation with internal piles.  After the earthquakes the floor level differential is 58mm in the house.  The earthquakes also caused some cracks to the perimeter foundation.  The Court decided that the policy standard of”when new” involved a comparison to the state of the house when it was built.  So any foundations must provide that level of support.  Gendall J decided that repairing the foundation cracks with epoxy met the policy standard and so did the proposed jacking and packing of piles and perimeter.  This would not meet the standards for a newly built home, but met the insurance policy standard that required the comparison to as built in the 1920’s.  The conclusions were premised on IAG being able to obtain building consents (or exemptions) and code compliance certificates for the work.  If it could not do so, then IAG would be required to replace the entire foundation.

In April 2014 the Institution of Professional Engineers dismissed a complaint about Alan Reay and his involvement with the design and building of the CTV building that collapsed killing 115 people in the 22 February 2011 earthquake because Dr Reay was no longer a member of IPENZ.  In a judgment 7 December 2018 in Attorney General v IPENZ & anor [2018] NZHC 3211 the High Court (Collins J)  decided that IPENZ was wrong in its interpretation of the word”member” and that member included a person that had resigned after the complaint was made.  So IPENZ is now able to consider complaints about Dr Reay.

In Ginivan & Ors v Southern Response Earthquake Services Ltd [2018] NZHC 2403 the High Court considered an application by home owners of a house being rebuilt for orders requiring Southern Response to pay specified expert engagement expenses because Southern Response apparently refused to pay the costs of building experts suggested by the homeowners.  The homeowners proposed using Warren & Mahoney as architects.  Its price for plans and related architectural work was $195,000.  Southern Response regarded the fee as unreasonable and got a price from Eco Workshop for $114,000.  The policy provided that Southern Response would pay the reasonable costs of any architects to rebuild the house provided that Southern Response approve the costs before they are incurred.  The Court decided that the homeowner had the right to choose the architect, but the costs must be objectively reasonable.  It put in place a process for consideration and payment of fees.

In Self Realisation Meditation and Healing Centre Charitable Trust (New Zealand) v IAG New Zealand Ltd [2018] NZHC 2077 the High Court (Osborne AJ) struck as parties two builders joined by IAG to claims by a property owner about earthquake damage to two Christchurch houses.  Each builder had minimal allegedly defective work and the property owner sued only IAG based on the policy without alleging defective remedial work.

In Blumberg v Frucor Beverages Ltd & ors [2018] NZHC 1876  the High Court (Jagose J) considered whether a not-at-fault car driver could recover the costs of hiring a replacement car whilst the collision damaged car was repaired from the at-fault driver.  The dispute was really between insurers and Right2Drive (New Zealand) Ltd.  R2D since 2016 has provided not-at-fault drivers with replacement cars during the period of their damaged car’s repair.  R2D seeks to recover its charges from the at-fault drivers or their insurer(s).  Since 2016 insurers had refused to pay R2D $4.22M, so R2D initiated the court proceedings.  The Court decided that the insurers were liable for all of the R2D charges.  These were mitigation expenses reasonably incurred.  The driver was only required to act reasonably which he/she had done so by entering into the hire agreement with R2D to mitigate the loss of use of their car.

In BC 74246 v QBE Insurance (International) Ltd & Allianz Australia Insurance Ltd [2017] NZHC 1473 the High Court (Whata J) resolved a dispute between QBE and Allianz about who was liable for the 4 September 2010 earthquake where the relevant QBE insurance policy expired at 4pm on 4 September 2010, but there was also an Allianz policy for the same property that stated the period of insurance “effective date” 4 September 2010 and expiry date of 4pm on 4 September 2010.  The 4 September 2010 earthquake occurred at 4.35am.  QBE asked the Court to order Allianz to be equally liable on the basis that the Allianz policy commenced at 12am on 4 September 2010.  The Court dismissed the QBE claim because the clear intention was that the Allianz policy commence when the QBE policy expired at 4pm.  It was to be seamless cover.  The Court implied the 4pm commencement as a term and also said that the objective interpretation of the policy was that it was to commence at 4pm.

In Annex Devleopments Ltd v IAG New Zealand Ltd & anor [2017] NZHC 706 a property owner, Annex, asked the Court to set aside a settlement agreement it entered into in February 2012 for settlement of a commercial building claim on the ground that it and IAG had made a mistake about the extent of the insurance cover.  Annex settled the claim(s) for $9,430,000.  IAG had previously made progress payments for emergency repairs and lost rent of $229,746.35.  Annex said that it ought to have received about $15M to $16M.  IAG insured the building for replacement with a sum insured of $8,706,824.  Annex said that its cover ought to have reinstated on each event and not when each claim was paid as IAG contended.  The Court disagreed and said that cover reinstated only on payment and only to the extent of the payment.  The Court entered summary judgment for IAG.  The claim continues against the insurance broker that placed the cover, Peter Taylor and Associates Ltd.

On 16 December 2016 Gendall J in the judgment in The Southern Response Unresolved Claims Group v Southern Response Earthquake Services Ltd [2016] NZHC 3105 gave approval to the proceedings against Southern Response being brought as a representative action.  The Group currently comprises 41 members who allege that Southern Response engaged in a strategy to improperly minimise its overall financial exposure to Canterbury earthquake claims.  The strategy is detailed in the judgment.  Gendall J also decided that the litigation funder’s fee was fair and reasonable, but required it to communicate with group members about misleading original advice giving each group member 21 days to withdraw.  Other Southern Response policyholders have until 16 April 2017 to “opt in” to the proceeding.  The Court declined the Group’s request for Southern Response to provide to them names and contact details of all unresolved Southern Response claimants.