The Canterbury Earthquakes Insurance Tribunal opened on 10 June 2019.
44 items matching your search terms
Jurisdiction / EQC repairs / repairs overseen by Fletcher Construction Company Limited (EQR) / proceedings filed in District Court / house sold by mortgagee sale in 2013 / settlement agreement with EQC and EQR / ss 8, 11 and 17 of the Canterbury Earthquakes Insurance Tribunal Act, 2019 / jurisdiction to bring claim to Tribunal / no current dispute between the parties which satisfies the requirements for the Tribunal.
Election under insurance policy / insured stated they did not intend to complete certain repairs / telephone conversation recorded in file note / file note is hearsay contained in business record / Evidence Act 2006, s 19 provides file note is admissible; questionable whether staff member would have useful recollection of events / whether an election under insurance policy / communication of election choice must be unequivocal / insured needs to make an informed election choice, having a reasonable appreciation of scope of damage, the work required to remediate, and the likely indemnity otherwise available / insured was not aware of difference in outcome between the two options / alternatively, election was not unequivocal as it was directed towards particular repair strategy.
Transfer from High Court / Canterbury earthquake sequence / State insurance - IAG / defective repairs / contract of insurance with third parties / whether IAG liable for works of third parties / 1920’s house / repair standard / policy standard “when new” / scope of works / building code / contractual breaches under the building contract / functionality / aesthetics / cause of deficiencies / damages – not within scope of hearing / submissions for costs.
Recall judgment / substantive issues / expert evidence / factual findings / interest as damages / introduced evidence regarding data by EQC / Canterbury Earthquakes Insurance Tribunal Act 2019, s 47(2) / what constitutes legitimate grounds for recall / allegation of judgment interference unsubstantiated.
Increased Flooding Vulnerability (IFV) / EQC Act 1993 / defective repairs carried out after Canterbury Earthquake Sequence (CES) / insurance policy with Southern Response capped at $150,000 / EQC’s liability to rectify defective repairs and make good consequential water damage / whether land is more prone to flooding as a result of the CES / mechanisms which determine IFV flooding / house 100m from water-course / EQC Act confers discretion on EQC to settle claims, with limits / suffered global settlement / land is not IFV / threshold for general damages high / claim for general damages unsuccessful.
Minute / joint memorandum of counsel requesting first case management conference be vacated and expert facilitation convened instead / HELD / first case management conference provides opportunity for applicant to be heard / at conference, details of claim and options for resolution canvassed to determine pathway forward / request declined.
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.
Contractual interpretation / preliminary question / whether parties entered an enforceable agreement regarding repair method during joint engineering report process / without prejudice statements / claimed contract involved experts’ conferral described as a “meeting” / agenda document produced only signed by experts in parts / claimed contract lacks normal clauses expected / not an enforceable agreement / estoppel / insurer did not represent it was willing to be bound / whether Southern Response unreasonable in failing to ratify agreement / insurer must not act unreasonably if deciding not to ratify an agreement reached by engineers / engineers did not finalise agreement about repair methodology / agreement a record of negotiations.
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.
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.
Settlement agreement / EQC paid claims for emergency repairs / subsequently investigated validity of claims and was not satisfied claims were valid / applicant and EQC agreed to repayment of claimed sums / after applicant defaulted repayments, EQC set off outstanding sum against other amounts payable to applicant / Tribunal finds applicant entered into binding settlement agreement / application for payment of emergency repair claims dismissed / applicant ordered to pay EQC outstanding balance of settlement agreement.
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.
Proper calculation of EQC cap / Earthquake Commission Act 1993, s 18 / HELD / s 18(1)’s purpose is to limit EQC’s exposure in event of major natural disaster / method to calculate cap is two-part process / examine which sub-paragraphs in s18(1) apply / then, if necessary, calculate the entitlements to identify which is the lowest / insurance policies were for “full replacement value” and did not specify a sum, therefore s 18(1)(a) cannot apply / s 18(1)(b) only applies if the policy does not specify a replacement sum but does specify an amount for which the building is to be insured under the EQC Act / s 18(2) cannot be used to quantify the s 18(1)(b) sum / s 18(2)’s purpose is to prevent homeowners from nominating an unrealistically low figure for natural disaster cover under s 18(1)(b) / on the facts, only s 18(a)(c) applies because the other two could not.
Management of agreed repairs / disagreement over scope of works / determining reasonable costs / State Insurance policy / insurer required permission before expenses incurred / insurer’s control over reinstatement process / duty of good faith / implied condition that insurer obliged to have due regard to interests of insurer / insurer required to balance cost v risk / implied condition that insurer not to unreasonably withhold permission to incur expense / IAG reasonably withholding permission to replace skylights / IAG unreasonably withholding permission to seek Master Build Guarantee, to encapsulate roof, to repair T & G floor boards by gluing from below, and to incur professional inspection fees / fabric roof repair required IAG to balance weathertight risks with cost of repairs / IAG able to choose between reasonable alternative repair options for fabric roof / IAG unreasonable to refuse permission for homeowner’s proposal for repair of fabric roof as IAG’s favoured alternative rep…
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.
Application / applicant claims property experienced differential settlement of foundations, interior and exterior cracking, and chimney damage due to earthquakes / referred for acceptance / Canterbury Earthquakes Insurance Tribunal Act 2019, section 8 / section 9 / section 13 / section 17 / section 46 / application must meet section 8 criteria / namely: at time of damage by qualifying earthquake applicant was property owner and property insured in applicant’s name; there is a dispute between applicant and an insurance company or Earthquake Commission (EQC) regarding damage claim; building was either residence or at least fifty per cent of building was used as a residence; and one of parties to claim is either EQC or an insurance company / proceedings in another forum will render application ineligible unless proceedings transferred to Tribunal, as per section 17(c) / applicant party to insurance claim in High Court, appealed to Court of Appeal / higher court proceedings involved same …
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…
Costs decision / application for costs against first and second respondents / Canterbury Earthquakes Insurance Tribunal Act 2019, section 47 / principles of costs awards in CEIT discussed / may be awarded when steps taken without substantial merit or in bad faith / recovery permitted for costs incurred unnecessarily as a consequence / insurer and second respondent advanced arguments without substantial merit / insurer acted in bad faith / insurer complaints of unfairness in being singled out for costs / while other respondents shared an interest with insurer in some respects, no evidence they endorsed insurer’s actions / applicants awarded costs to offset expenses unnecessarily incurred by first and second respondent’s conduct of cases.