Ministry of Justice

Admissibility of evidence / litigant in person included submissions in affidavit / Tribunal prepared to make allowances for litigants in person who do not appreciate difference between submissions & evidence / counsel not expected to cross-examine arguments / homeowners not expected to incur unnecessary expense in calling expert witnesses / Tribunal has discretion to admit evidence that might otherwise be inadmissible, including hearsay evidence / Canterbury Earthquakes Insurance Tribunal Act 2019, s 37 / evidence not relevant to present stage of proceedings but still relevant & necessary to proceedings / Tribunal not prepared to strike out submissions / reports of expert witnesses admissible but Tribunal not willing to rule how much weight should be given to them / parties wishing to rely on documents expected to make submissions on weight given to them.

Case stated / application for referral of question of law to High Court / whether insurer’s obligation to pay repair cost of house to policy standard includes obligation to pay reasonable cost required to remedy defective repair work / insured’s claim for earthquake damage to house accepted / repair work completed & insurer paid full contract price / repair work defective / insured claims insurer should pay for cost of bringing house up to policy standard by repairing damage & rectifying defective repairs / Canterbury Earthquakes Insurance Tribunal Act 2019, s 53 / question one of contractual interpretation & so a question of law / question addresses primary cause of action raised against insured & requires urgent determination in High Court / positive or negative answer would lead to speedier & more cost effective outcome for insured / case stated likely to be provide important benefits, not only for insured, but for many other homeowners / application granted.

Procedure / dismissal / without prejudice rule / costs for bad faith / dispute over whether driveway needed to be repaired or re-laid in order to replace drains damaged by earthquake / EQC agreed to pay for cost of relaying driveway but offer rejected because it did not cover cost of bringing application / EQC sought costs for bad faith & dismissal of claim as offer resolved dispute / Canterbury Earthquakes Insurance Tribunal Act 2019, s 46, s 47 / without prejudice rule waived in terms of settlement agreement but agreement on its own not enough evidence to dismiss claim / Tribunal unable to consider merits of costs application or reasonableness of offer due to without prejudice rule / EQC entitled to make settlements full & final / EQC did not act in bad faith in raising defence that applicants’ advocate agreed to repair / application dismissed.

Expert advisors / appointment of independent engineer as expert facilitator / applicant objected to appointment on basis engineer had worked for respondent in a number of claims / Canterbury Earthquakes Insurance Tribunal Act 2019, s25 / engineer worked for a variety of insurers & claimants / s25 requires actual rather than apparent bias / actual bias requires a real connection between expert & party such that their independence is affected / no evidence of actual bias / engineers not fiduciaries & their duty is simply to advise / no conflict of interest where engineer appears as an expert witness against former principal.

Applicants sought declaration that aesthetic damage caused by 4 September 2010 earthquake to exposed concrete floor was beyond repair & required replacement of house built in 2009 /  insurer argued structure & fabric of building showed little signs of damage and replacement was disproportionate to the damage suffered  / Tribunal held proportionality not relevant to claim seeking performance of insurance obligations / proposed repair to fireplace, clearwater system & sewerage unreasonable / other proposed repair methods not unreasonable / Tribunal not prepared to make other declarations sought or determine insurer’s liability / repairs needed to be scoped & costed.

Disagreement over scope of works /  Southern Response Insurance policy / interpretation of insurance contract / interpretation of ‘as new’ / application of ‘as new’ / ‘as new’ and ‘when new’ create the same outcome / repairs must meet the current building code / what repairs are required to meet the policy standard / whether to relevel or rebuild foundations under the insurance contract / Southern Response’s repair methodology to relevel is not unreasonable / whether Southern Response elected to cash settle / law on damages / Southern Response breached its duty of good faith / damages of $5,000 awarded to the insured for mental distress/ Tribunal’s power to award costs.

Procedural order / second respondent seeking further particulars of claim / response filing deadline extension / first case management conference deferral / Canterbury Earthquakes Insurance Tribunal Act 2019, s 15 / written response and support documents to be filed within 15 working days of service, as per s 15 / extension may be directed by Tribunal / extensions to be sought by memorandum and will be determined as without notice application, as per amended Practise Notes / respondents unable to file detailed response due to lack of application clarity / should file pro forma response and orally request further particulars at first case management conference / second respondent not involved in EQC Protocol 1 repairs as expected costs under EQC cap / claim requires commission and consideration of expert reports and other document before claim response possible / however, Tribunal not a pleadings based process / imperative to be fair, speedy, flexible and cost-effective process / discov...