The Canterbury Earthquakes Insurance Tribunal opened on 10 June 2019.

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  1. RT v Earthquake Commission & IAG New Zealand Ltd [2023] CEIT 003 [PDF, 289 KB]

    Admissibility of evidence / Evidence Act 2006, s 57 / dispute over whether homeowner’s settlement with EQC was under or over the statutory cap which was relevant to determining the private insurer’s outstanding liability, if any / homeowner applied for the admission of EQC settlement agreement and pre-settlement discussions and negotiations / EQC submitted that the settlement agreement is clear and ambiguous, and there was no evidence that the pre-settlement negotiations and discussions could be used to interpret the agreement otherwise / Tribunal finding that it is not strictly bound by the Evidence Act, but will nonetheless be guided by its principles / Tribunal finding that it would be sufficient at this stage to admit the settlement agreement to evidence, but not pre-settlement negotiations and discussions / Tribunal noted that it may make further orders after receiving and considering the settlement agreement / Tribunal noted its objective to facilitate the expeditious resolution …

  2. RM ND and DD v EQC & VERO Insurance New Zealand Ltd (costs) [2023] CEIT-2019-0074 [PDF, 128 KB]

    Decision on costs / applicants seek costs against Vero / applicants argue Vero incurred unnecessary expenses and costs related to unmerited matters / Vero argue it was entitled to raise matters now alleged to be without substantial merit / s 47 CEIT Act 2019 / section to be construed narrowly / HELD: fact that an argument was unsuccessful does not equate to allegation being without substantial merit /  impossible to isolate with any certainty the costs related to isolated pleadings and affidavit defences / Tribunal declined to award costs to applicants  / parties bear their own costs.

  3. D v IAG New Zealand Ltd [2022] CEIT-2020-0014 [PDF, 619 KB]

    Damaged house / parties disagree on repair methodology / D seeks a rebuild, IAG seeks repair / 10 % contingency / whether IAG’s proposed repair strategy meet the Policy standard / IAG’s engineering proposal meets policy standard / IAG to pay amount needed to repair premises to Policy standard, within 5 working days of completed contract to repair / Any costs associated with damage by rats is damage consequential on earthquake damage and the investigation of extent of the damage by IAG / insulation that needs replacing due to rat contamination to be paid for by IAG under the Policy as rectification of earthquake damage / Any insulation to be replaced because has been wet, as opposed to contaminated by rats, is to be replaced within the 10% contingency allowance / IAG to reimburse cost of expert reports within 10 working days of decision / costs have risen 16% since the hearing 19 months ago and been taken that into account in making orders for costs for a Policy compliant repair.

  4. E v IAG New Zealand Ltd (No 4) [2022] CEIT-2019-0013 [PDF, 535 KB]

    Final Quantum Decision (decision) issued 2021 / IAG made application for recall of decision and for a stay on enforcement of orders / E opposed application / IAG argued decision contains mistakes central to the disposition of the quantum issues and is not in accordance with natural justice or procedural fairness / E argued Tribunal lacks jurisdiction or power to recall decision or stay enforcement of decision / whether Tribunal has power to recall its decisions / whether Tribunal has power to recall perfected decisions / recalling decision is against the principle of finality / High Court Rules 11.9 / Tribunal is defined and limited by CEIT 2019 Act / ss 46 and 49 of the Act / at time decision was published, Tribunal’s powers were exhausted / no power to order a stay / IAG’s objection to paragraph [30] of decision is misconstrued / alleged error does not change outcome / IAG’s application for recall declined

  5. E v IAG New Zealand Ltd (3rd decision – quantum) [2019] CEIT-2019-0013 [PDF, 596 KB]

    Third decision / quantum / parties agreed to decision on the papers / considerable gap on quantum between parties / whether damages sought are reasonable / considers objections to additional evidence / Applicant objected to additional evidence on procedural and substantive grounds / matter had gone through facilitation, new evidence not raised in facilitation causes concern for Applicant / Literock argued as alternative Solution to Rockcote Integra System / Evidence Act 2006 and Rules of Court provide guidance to Tribunal on categories of evidence, including hearsay and unqualified opinion / experts conferral is an evidentiary process / repairs on existing property involves risk of damage to building / material supply delays and inflation / held: reasonable cost of repair $1,543,505 (incl) / IAG liable to pay / loss of amenity or loss of value not suitable means to calculate damages.

  6. BD & ND v Southern Response Earthquakes Services Ltd [2022] CEIT-2020-0015 [PDF, 381 KB]

    Southern Response / canterbury earthquake sequence / defective repair / disagreement over repair methodology / as when new policy wording / protrusion is aesthetically non-compliant / reasonable that the protrusions removed and Southern Response pay for the repair / newly constructed garage sits hard against boundary line which affects amenity / homeowner argues misleading conduct in accordance with Southern Response v Dodds / misleading claim unsuccessful / Southern Response not liable for replacing 100 year old wiring when carrying out repairs

  7. AFT v Tower Insurance Ltd [2022] CEIT-2022-0001 [PDF, 271 KB]

    Preliminary issue / whether Limitation Act 2010 applies to claim under Consumer Guarantees Act 1993 in respect of insurance contract / Consumer Guarantees Act 1993, s 20(2), s 28, s 32 / Limitation Act 2010, s 11, s 12, s 14 / HELD / insurer cannot be required to remedy defects under s 32(a)(i) of the CGA as claim not brought within a reasonable time, but plaintiff has not lost the right to recover reasonable costs of having the failure remedied by another under s 32(a)(ii)(A) / that money claim is subject to the Limitation Act 2010 / directions for next steps issued

  8. A Trustees v IAG New Zealand Ltd [2022] CEIT-2019-0078 [PDF, 216 KB]

    Multiple parties / seeking determination on question of law s 53(1) / whether Tribunal has jurisdiction under s 45(1) of its Act to determine issues as to costs under an agreement between the parties / HELD / Tribunal was set up to determine disputes about insurance claims / overriding purpose of the Act is to provide fair, speedy and flexible services for resoling insurance disputes / s 46 provides that Tribunal may make any order a court of competent jurisdiction could make in relation to the general law of NZ / s 47 discretionary power of Tribunal to award costs / Contractual claims for as incurred legal and expert costs are prima facie enforceable contractual obligations / the Tribunal has jurisdiction to decide issues of contractual cost claims and is not limited by s 47 / Tribunal can answer question of law as a pre-hearing determination

  9. RM ND and DD v EQC & VERO Insurance New Zealand Ltd (substantive) [2022] CEIT-2019-0074 [PDF, 1.8 MB]

    Exclusions in policy / CES / Vero / whether damage is recoverable / High Court transfer / specific performance of insurance contract / water ingress / whether exclusion clauses prevail over homeowners right to repair house / causation / Building Act 2004, ss 17 &112 / leaky building / Fair Insurance Code / Canterbury Earthquakes Insurance Tribunal Act, 2019 s 45 / expert conferrals / evidence / HELD / exclusion clauses not to be read broadly / statements made require materiality to be excluded / homeowners did not have actual knowledge of failure / objective intention of the parties when entering in to contract of insurance / alternative solution not acceptable / P&G and Margin 10% 

  10. J v IAG New Zealand Ltd [2022] CEIT-2019-0068 [PDF, 530 KB]

    Defective repairs / remediation strategy / obligation to indemnify / moisture ingress resulting from earthquake damage and repairs / whether remediation strategy cannot meet durability requirements / whether repairs met IAG’s obligations under the policy / if not, what steps are necessary to meet those obligations / as when new standard / meaning of damage / Canterbury Earthquakes Insurance Tribunal Act 2019, s 40, s 56 / Building Act 2004, s 17 / Sleight v Beckia Holdings [2020] NZHC 2851 / Technology Holdings Ltd v IAG New Zealand Ltd (2009) 1 ANZ Insurance Cases 61-786 / HELD / liquefaction ejecta compromised slab, damp proof membrane and tailings / caused by CES and constitutes damage / garage floor slope caused by CES, differential settlement of slab is damage / repairs involved replacing perimeter foundation and back slab and grout injection to fill void / whether repairs a reasonable response to damage, and whether repair properly carried out / foundation repairs improved perfor…

  11. L v EQC [2022] CEIT-2019-0038 / 0044 [PDF, 221 KB]

    EQC / two properties / EQC’s liability under cl 3(f) of sch 3 Earthquake Commission Act 1993 / invoice fraud for emergency repairs / previous Tribunal decision held applicants were fraudulent in using EQC monies on emergency repairs / applicant did not challenge EQC’s decision to decline claim / EQC Declination letters to L / held: EQC Act provides discretion for EQC to decline a claim that is in any respect fraudulent entire claim is fraud has been / No order for compensation for loss of rent can be made against EQC / EQC to make payment of $10,240.05 within 10 working days of this decision.

  12. E v IAG New Zealand Ltd [2021] CEIT-2019-0013 [PDF, 4.1 MB]

    House damaged during the CES / 22 February 2011 Christchurch earthquake / 14 February 2016 Kaikoura earthquake / IAG managed repair programme / defective repairs / Hawkins / Falcon / un-scoped unrepaired earthquake damage / council consent issues / IAG argue pre-existing water ingress issues / cladding reinstatement / QBE removed as a party / credibility of witnesses / weighting of evidence / Building Act 2004 / Consumer Guarantee’s Act 1993 / Building Code / as when new policy standard / Sleight v Beckia Holdings [2020] NZHC 2851 / held: repairs require remediation / IAG to re-clad stucco / general damages threshold not met

  13. L v EQC [2021] CEIT-2019-0036 [PDF, 298 KB]

    EQC / Tower Insurance / Canterbury Earthquakes Insurance Tribunal Act 2019, s 11 / allegations of fraud against L for emergency repairs / Tribunal previously found L to be fraudulent / EQC application to be removed as a party / claim made 3 months after earthquake date / Tower’s liability / loss of rent cover / held: L had knowledge to make claim within EQC’s time frame / EQC Act 1993 / Limitation Act 1950 / Limitation Act 2010 / EQC are removed as a party / Tower are subsequently removed as a party.

  14. B v Southern Response Earthquake Services Ltd [2021] CEIT-2021-0006 [PDF, 367 KB]

    Southern Response (SR) / house damaged during CES / process to rebuild foundations contained within agreement  / timeframes not adhered to / whether SR can rely upon an agreement as a defence or whether SR are estopped and must pay homeowner’s claim for enhanced foundations / evidence of correspondence between parties / whether claim was validly closed / held: SR can rely upon agreement / homeowner agreed to a process which he failed to follow / full and final agreement signed / allowances were made by SR.

  15. G v EQC [2021] CEIT-2019-0056 [PDF, 874 KB]

    EQC / Vero / extent of damage caused by CES / repair methodology / whether foundations were damaged by CES which require full replacement / timber framed, concrete perimeter beam on piles / HC transfer / EQC Act 1993 / Diagrams / impartiality of evidence / ‘when new’ and cost incurred policy / policy subject to Building Act 2004 and building code / burden of proof / physical damage /geotechnical evidence / structural evidence / foundation dislevelment historic / historic settlement / consequential damage to kitchen / full foundation replacement not supported by evidence / perimeter beam and piling did not suffer a material change to its functionality caused by CES / minor CES damage established to dwelling / repairs include: epoxy to perimeter foundation, consequential damage repairs, replacement of a pile, replacing broken roof, and interior linings / quantity surveyor to provide updated costings to Tribunal including P&G, Margin and GST / 10% margin / damages against EQC.

  16. W v EQC [2021] CEIT-2019-0007 [PDF, 820 KB]

    EQC – order sought to reopen full and final settlement agreement made in the CEIT – EQC oppose reopening of agreement – homeowners accepted cash payment offer to settle defective repairs – jurisdictional defence of CEIT raised – ss 46(8)(a) and 8 CEIT Act 2019 – homeowners argue they were given guarantees by the CEIT and EQC that they could return to Tribunal if items were worse than quoted –  homeowners claim duress with signing settlement agreement – person acting as agent of EQC – EQC seek costs against homeowners – costs denied –  reopening settlement agreement struck out – transcript of proceedings as evidence.

  17. W v Southern Response Earthquake Services Ltd [2020] CEIT-2020-0020 [PDF, 248 KB]

    Process of insurance contract / insurer elected to pay cash equivalent of cost of repairs / applicant claims insurer’s experts did not properly identify earthquake damage and insurer’s repair methodology not reasonable / Ginivan v Southern Response [2018] NZHC 2403 / HELD / applicants entitled to select experts and builders, choose repair methodology, develop scope of works, and enter into building contract for price they consider to be reasonable / insurer entitled to undertake its own assessments, at its expense / if insurer’s cash equivalent of cost of repairs is less than applicant’s own scope, applicants will need to meet the additional cost unless they satisfy insurer or the Tribunal the insurer’s figure is unreasonable / insufficient evidence to determine / all complaints to be addressed together.

  18. M (C M Trust) v Tower Insurance Ltd [2019] CEIT-2019-0012 [PDF, 213 KB]

    Further discovery application / applicants seek disclosure of internal communications, documents and advice regarding applicants’ eligibility for further repairs / also seek disclosure of legal opinion on basis insurer waived privilege / insurer contends discovery obligations discharged, legal opinion privileged / Canterbury Earthquakes Insurance Tribunal Act 2019, section 15 / section 40 / schedule 2, clause 13 / Evidence Act 2006, s 65 / CEIT Practice Note / Tribunal may order discovery / broader search parameters may discover further relevant internal communications, documents, and advice / insurer directed to conduct further search and discover any further documents / legal opinion privileged / privilege not waived / reference to legal opinion was in internal communication / not sent to applicants / not a voluntary disclosure of a significant part of the legal opinion inconsistent with privilege.

  19. AJE, CDE, and JPS as Trustees of the EE Family Trust v Vero Insurance New Zealand Ltd [2020] CEIT-2020-0009 [PDF, 348 KB]

    Negligence / breach of contract / claim insurer breached insurance policy contract or was negligent in repairing spouting and downpipe, causing landslip / whether overspill occurred / whether drainage system earthquake damaged / evidence demonstrates water spilling from spouting after initial repairs and damage caused by earthquake / insurer was obliged to repair damage to the policy standard, and is liable for defective repairs / insurer owes duty of care to repair damage in proper manner / functionality test applied, repairs not fully functional / causation / overspill a material and substantial cause of landslip / applicants able to recover losses of constructing retaining wall / interest awarded / costs and general damages not awarded.

  20. CMT v EQC & Tower Insurance Ltd [2021] CEIT-2019-0012 [PDF, 292 KB]

    Hearing on three issues after case stated to High Court / first, uplift from the policy cap to the market value cap / policy cap is an overall cap on claims within one policy period, not per earthquake event / market value cap operates as an overall cap, not per earthquake event / insurer not permitted to now raise evidential issues as to scope of works, costs, and depreciation / insurer had sufficient time to commission own evidence in rebuttal / evidence before Tribunal sufficient to dispose issue / second, insurer’s entitlement to EQC payment credits when policy does not respond to that event due to policy cap / insured not permitted to be more than fully indemnified / retaining EQC payment would enable insured to recover in excess of maximum sum payable / third, liability for costs incurred by insured displacing insurer’s denial of liability / insured did not seek approval prior to engaging experts / policy required prior authorisation / insured unable to recover costs under policy…

  21. LS v MIS [2021] CEIT-2020-0024 [PDF, 365 KB]

    Litigation funding agreement / application by insurer to modify insured’s litigation funding agreement / concern cancellation clause may pose barrier to settlement / whether litigation funding agreement an abuse of process / Waterhouse v Contractors Bonding Ltd [2014] 1 NZLR 91 / funding agreement not an assignment of bare cause of action / insurer’s proposed amendment not justifiable / however, potential conflict between funder as adviser and cancellation clause risks litigation could be used for a collateral purpose, the funder’s profit / Tribunal orders insured and funder to modify agreement to require independent advice if funder intends to cancel agreement.