Fitzgerald v IAG Insurance – no recall of judgment

Fitzgerald & ors v IAG New Zealand Ltd [2018] NZHC 3447 was a High Court judgment by Gendall J about the repairability of a rubble foundation damaged in earthquake(s).  The Fitzgeralds appealed the judgment to the Court of Appeal, but also applied to have Gendall J recall his judgment on the grounds that the Court had relied upon incorrect evidence by IAG’s expert engineer, Craig Lewis, about similar repair strategies being performed on other houses in Christchurch.  Apparently one house relied upon by Mr Lewis was TC2 and not TC3 and did not get a building consent as an exemption was granted.  In Fitzgerald & ors v IAG New Zealand [2019] NZHC 632 The High Court (Gendall J) dismissed the recall application.  The judgment says that it relied on evidence other than from Mr Lewis and expressly referred to the failure to cross examine IAG’s builder who said he had seen the repair done 20 times and evidence from Fitzgerald’s own geotechnical engineer about consent.  It also noted it would generally not be appropriate for a Court to recall its judgment once an appeal had been lodged.