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High Court Earthquake List HC Litigation List & LINX Case Summaries

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High Court Earthquake List HC litigation list & LINX case summaries High Court Earthquake List - LINX case summaries for judgments for the period February 2016 to March 2020 follow. Most decisions are available on Judicial Decisions Online at https://forms.justice.govt.nz/jdo/Introduction.jsp All judgments listed below are available from the Law Society Library (document delivery fee applies). The High Court’s spreadsheet for HC Earthquake List litigation filed, current 5 March 2020 is available on the courts website: https://www.courtsofnz.govt.nz/the-courts/high-court/high-court- lists/earthquake-list-christchurch For further information contact the Library [email protected] or phone 03 377 1852. 12 March 2020 NAME White v VXJ Holdings Ltd JUDGE(S) Gendall J COURT High Court, Christchurch FILE NUMBER CIV-2019-409-000157, CIV-2019-409-000221 JUDG DATE 26 November 2019 CITATION [2019] NZHC 3095 FULL TEXT PDF judgment PARTIES Michael Leslie White and Body Corporate 78462 (applicants), VXJ Holdings Ltd (respondent/applicant) NOTE Cave Rock decision SUBJECT CIVIL PROCEDURE - successful application by Body Corporate and its committee chairman for orders regarding distribution of weathertight home funds and insurance proceeds for the residential and commercial complex following the Christchurch earthquake sequence and for cancellation of the unit plan - issue disputed by 4 of the 50 unit title owners regarding distribution of insurance proceeds and property in accordance with reassessed ownership interests determined in favour of the Body Corporate and its 46 supporting owners - finding that it was just and equitable, on the valuation evidence before the Court, that on cancellation of the unit plan the proceeds were to be divided on the basis of the registered and reassessed ownership interests rather than the original unit entitlement interests fixed in 1998 at the time of development - Held: by consent, order made under the Property Law Act 2007 for the sale of the remaining development interests to a third party under an existing contract - respondents' application to appoint an administrator for the Body Corporate at this point failed [PRELIM H/NOTE] UNIT TITLES STATUTES Property Law Act 2007 s339, s340, s341, s342, s343 - Unit Titles Act 1972 s48 - Unit Titles Act 2010 s38(2), s39, s39(2), s39(2A), s74, s141, s177, s188(2), s188(3), s189(5), s189(5)(aa), s210, CASES CITED Tisch v Body Corporate No 318596 [2011] NZCA 420, [2011] 3 NZLR 679, (2011) 12 NZCPR 533, (2011) 6 NZ ConvC 95-558 ; Body Corporate 312431 v Auckland Council [2015] NZHC 961 ; Dominion Finance Group (in rec, in liq) v Body Corporate 382902 [2012] NZHC 3325, (2012) 7 NZ ConvC 96-003, (2012) 14 NZCPR 252 ; Lake Hayes Property Holdings Ltd v Petherbridge [2014] NZHC 1673, (2014) 15 NZCPR 590 ; World Vision of New Zealand Trust Board v Seal [2004] 1 NZLR 673, (2004) 5 NZ ConvC 193,823, (2003) 11 TCLR 90, (2003) 5 NZCPR 618 ; OM Hardware Ltd v Body Corporate 303662 (2015) 15 NZCPR 921 REPRESENTATION HC Matthews, VA Nichols PAGES 27 p LOCATION New Zealand Law Society Library LINX database last updated: 11/03/2020 4:35:37 p.m. Query: "high court earthquake list" or "earthquake sequence" [Field Court: high ] Page: 1 NAME Dewes v IAG New Zealand Ltd JUDGE(S) Associate Judge Lester COURT High Court, Christchurch FILE NUMBER CIV-2017-409-000662 JUDG DATE 7 November 2019 CITATION [2019] NZHC 2899 FULL TEXT PDF judgment PARTIES Catherine Frances Dewes, Robert Denton Green and Diana Rosemary Shand (as trustees of the Dewes Green Family Trust), IAG New Zealand Ltd (first defendant), Max Contracts Ltd (second defendant), Max EQ Ltd (third defendant), Orange H Management Ltd (formerly Hawkins Management Ltd) (in rec, in liq)(first third party), Orange H Group Ltd (formerly Hawkins Management Ltd (in rec, in liq) (second third party), Max Contracts Ltd (third third party), QBE Insurance (Australia) Ltd (fourth third party) NOTE High Court Earthquake List SUBJECT CIVIL PROCEDURE - unsuccessful application by fourth third party (QBE) for leave to appeal the decision transferring the proceeding to the Canterbury Earthquakes Insurance Tribunal - QBE had argued in the transfer application that the third party proceedings it faced should be recognised as a standalone and that that standalone proceeding would not be eligible for transfer pursuant to the terms of the Canterbury Earthquakes Insurance Tribunal Act 2019 (the Act) - High Court had taken the view that jurisdiction to transfer in s16 of the Act related to an entire proceeding - assessment of applications for leave to appeal - statutory interpretation - Parliamentary intention - interests of justice would not be served by granting leave to appeal - HELD: application for leave to appeal dismissed - costs reserved [PRELIM H/NOTES] STATUTES Canterbury Earthquakes Insurance Tribunal Act 2019 s3, s8, s8(1), s11, s11(1), s11(1)(a), s11(1)(b), s16, s16(2), s16(2), s16(2)(a), s27(1)(d), s45- High Court Rules 2016 R4.7(1) - Law Reform Act 1936 - Senior Courts Act 2016 s56(3) CASES CITED Smith v Claims Resolution Service Ltd [2019] NZHC 2738 ; Dewes v IAG New Zealand Ltd [2019] NZHC 2270 REPRESENTATION CF Dewes (in person), NS Gedye QC, O Collette-Moxon, R Smedley, D McLellan QC, LR Green PAGES 13 p LOCATION New Zealand Law Society Library LINX database last updated: 11/03/2020 4:35:37 p.m. Query: "high court earthquake list" or "earthquake sequence" [Field Court: high ] Page: 2 NAME Heale v IAG New Zealand Ltd JUDGE(S) Associate Judge Paulsen COURT High Court, Christchurch FILE NUMBER CIV-2018-409-000166 JUDG DATE 1 November 2019 CITATION [2019] NZHC 2829 FULL TEXT PDF judgment PARTIES Thomas Edward Fairfax Heale and Anthea Clare Heale (plaintiffs), IAG New Zealand Ltd (defendant), QBE Insurance (Australia) Ltd (proposed first third party), Buildtech Restorations Ltd (proposed second third party), Engineering Design Consultants Ltd (proposed third third party) NOTE High Court Earthquake List SUBJECT CIVIL PROCEDURE - successful applications by defendant (insurer) to join third parties; successful application by proposed first third party (QBE) objecting to admissibility of affidavits - plaintiffs' home damaged in Canterbury earthquakes - made claim under policy with insurer - insurer accepted claim - 2012, insurer entered Rebuild Solution Master Agreement (RSMA) with two entities (Hawkins) - obliged Hawkins to manage reinstatement of earthquake damage on behalf of insurer's clients - Canterbury Home Repair Scheme - plaintiffs elected to repair home under Scheme - entered building contract with proposed second third party (Buildtech) - insurer not party to building contract but paid for repairs as they were completed - Buildtech engaged proposed third third party (EDC) to provide engineering advice in relation to repairs, foundations and other structural elements - Buildtech completed repairs - plaintiffs filed proceedings against insurer - pleaded breach of policy, breach of Fair Trading Act 1986, negligence and loss of a chance - contended they were not advised of appropriate options available under policy - submitted insurer recommended Buildtech to do repairs when it was not competent - repair process not managed properly - repairs expected to take 20 weeks - took over a year - meant policy entitlements for alternative accommodation and landscaping were inadequate - plaintiffs alleged scope of works was deficient and they were misled by it -plaintiffs had to pay large costs for work outside insurance budget - plaintiffs submitted they were forced to sell home at under-value due to financial pressure caused by delays and having to incur costs that policy should have covered - pleaded losses of $16,042 accommodation costs, $116,929 building costs paid above insurance budget and $500,000 loss on sale of house - insurer applied to join Buildtech and EDC as third parties - pleaded they both owed and breached a duty of care to the plaintiffs to exercise reasonable care and skill in performance of repair work - insurer asserted it was entitled to claim contribution from them as LINX database last updated: 11/03/2020 4:35:37 p.m. Query: "high court earthquake list" or "earthquake sequence" [Field Court: high ] Page: 3 co-tortfeasors under s17(1)(c) Law Reform Act 1936 (Act) - Court found significant benefits in joining Buildtech and EDC joined as third parties - would avoid confusion, prejudice or oppression for individual parties - higher prospect of final resolution by alternative dispute resolution should all relevant parties be involved - all issues between parties could be resolved in one trial - removed possibility of inconsistent decisions - separate proceedings would result in duplication of costs - Court acknowledged joining third parties may result in some delays and escalate issues to be determined at trial - attainment of justice by the most efficient means was overriding consideration - Hawkins now in liquidation - at all material times, Hawkins had professional indemnity and general liability insurance policies underwritten by QBE - insurer claimed it had a charge on the insurance monies that were or may become payable in respect of Hawkins' liability to the insurer under s9(1) of the Act - QBE accepted criteria under s9(4)(a) and s9(4)(c) were met - claims-made-and-notified policy - Hawkins did not notify QBE of any circumstances that might give rise to claim under Policy during the period of insurance in respect of work at plaintiffs' property - Court outlined test for a notifiable circumstance - during
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