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Doig v Tower Insurance Ltd

Doig v Tower Insurance Ltd

Case [2019] NZCA 107 11 April 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA37/2018
[2019] NZCA 107

BETWEEN	HAMISH PAUL DOIG AND KAREN RACHAEL DOIG Appellants
AND	TOWER INSURANCE LIMITED Respondent

Hearing:	20 November 2018
Court:	Kós P, Brown and Clifford JJ
Counsel:	S P Rennie and W A L Todd for Appellants I J Thain and H L Hui for Respondent
Judgment:	11 April 2019 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe respondent is entitled to costs for a standard appeal, on a band A basis, together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mr and Mrs Doig purchased an earthquake-damaged house. The sale involved the vendors assigning their insurance claims to the Doigs. The vendors held a replacement insurance policy from Tower. The Doigs say an email sent by Tower to their solicitors represented that, post-settlement, the Doigs too would be able to claim on a replacement basis for repair or rebuild of the house. They say they relied on Tower’s email in confirming the agreement and that Tower is estopped from repudiating that representation.
Tower says the email did not have the effect asserted by the Doigs. And it says the email post-dated the Doigs’ contractual obligation to purchase. In accordance with the decision of this Court in Bryant v Primary Industries Insurance Co Ltd, the Doigs would be entitled only to indemnity value, rather than replacement value.[1]
[1]Bryant v Primary Industries Insurance Co Ltd [1990] 2 NZLR 142 (CA). We discuss this decision below at [28]–[29].
Mander J dismissed the Doigs’ claim.[2] They appeal to this Court.

Background

[2]Doig v Tower Insurance Ltd [2017] NZHC 2997, [2018] 2 NZLR 677 [HC judgment].

The damaged house the Doigs bought was in Redcliffs, a beachside suburb of Christchurch. The sale advertisement stated:
This is a waterfront investment, with my vendor’s firm intention to pass the baton and allow new purchasers to pursue and profit from a potential rebuild (Tower insurance). …
EQ damage will not affect your enjoyment now, vendors walking away and willing to let forward thinking purchasers reap the rewards and benefits of a full potential rebuild.
The Doigs signed the agreement for sale and purchase of the house, for $1.155 million, on 22 September 2012. They did so on the strength of that advertisement. The vendors were a couple called Mr and Mrs Bradbury. The Doigs did not speak to the Bradburys before signing the agreement. There were no other material representations by the Bradburys. Nothing said by the agent is relied on. Nor did the Doigs take legal advice before signing the agreement. Mr Doig is a real estate agent. He preferred to rely on his own knowledge of such things.
The contract was conditional on the Doigs being able to arrange satisfactory home and contents insurance, and a satisfactory building report, in each case within 40 working…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Doig v Tower Insurance Ltd

Details

AGLC: Doig v Tower Insurance Ltd [2019] NZCA 107
Case: [2019] NZCA 107
Decision Date: 11 April 2019 at 3 pm

CaseChat Overview and Summary

The appeal was brought by the Doigs against the decision of Mander J, who dismissed their claim. The Doigs purchased an earthquake-damaged house and sought to rely on an email from Tower Insurance to claim they were entitled to full replacement cover. Tower denied the assertion and the Doigs brought the claim in the High Court, which was dismissed. The Doigs appealed to the Court of Appeal. The appeal was dismissed, and Tower was entitled to costs for a standard appeal, on a band A basis, together with usual disbursements. The Doigs did not make a clear and unequivocal representation as to entitlement to assignment of replacement cover for prior insured events. Furthermore, the Doigs had not changed their position adversely in reliance on the representation by Tower. Finally, the Judge did not err in his conclusion on interest.

Orders