Freer v Earthquake Commission

Case [2023] NZHC 3662


IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-428

[2023] NZHC 3662

BETWEEN ANDREW ROBERT FREER and LUCINDA RAE McEVEDY
Plaintiff

AND

EARTHQUAKE COMMISSION

Defendant

Hearing: 12 September 2023

Appearances:

A R B Barker KC and G D R Shand for Plaintiffs N L Walker and C J Curran for Defendant

Judgment:

14 December 2023


JUDGMENT OF ASSOCIATE JUDGE PAULSEN


This judgment was delivered by me on 14 December 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

FREER v EARTHQUAKE COMMISSION [2023] NZHC 3662 [14 December 2023]

Introduction  [1]

The proposed common issues and class definition  [15]

Legal principles  [18]

Issue one — The proposed common issues  [22]

The first proposed common issue  [23]

The second proposed common issue  [24]

Issue two — Are the plaintiffs adequate representatives to advance the common issues on behalf of the class?  [42]

Do the plaintiffs lack the ability to undertake repairs to their land?                  [45]

Are there fresh causes of action that are time barred?  [47] The application issue  [48]

The strategy  [66]

Can the plaintiffs represent claims for IFV land damage?  [77]

Issue three — Is Mr Wootton a suitable representative in respect to IFV land damage?  [82]

Issue four — Is the proposed class correctly defined?  [93]

Persons who could not have suffered any loss because their entitlement could never be greater than DOV  [94]

Former owners  [95]

Subsequent owners  [99]

Persons for whom repair was not feasible or not wanted  [105]

Claims that are statute barred  [107]

Issue five — Should the class be constituted on an opt in or an opt out basis?

[113]

Prospect of disadvantage to class members  [116]

Objectives of r 4.24  [129]

Individual autonomy  [132]

Summary  [133]

Result  [134]

Introduction

[1]    The plaintiffs are the owners of 51 Quinns Road, Shirley. The property suffered increased liquefaction vulnerability (ILV) land damage in the Canterbury earthquakes. The plaintiffs made a claim to the Earthquake Commission (EQC) under the Earthquake Commission Act 1993 (the Act) in respect to the land damage.1

[2]    EQC developed policies for the assessment and settlement of land claims in respect to ILV and increased flooding vulnerability (IFV) land damage which were considered by the High Court in 2014,2 and were subject to several iterations.

[3]    In April 2017, EQC settled the plaintiffs’ claim by payment of its assessment of the diminution of value (DOV) of the plaintiffs’ land by reason of the ILV land damage. The plaintiffs were not unique in this regard. EQC settled over 99.5 per cent of all ILV claims, and 100 per cent of all IFV claims, on a DOV basis.3

[4]    The plaintiffs consider it was wrong for EQC to settle claims in respect of ILV and IFV land damage otherwise than for the cost of repair. They objected to EQC and advised that the payment of DOV was received as part payment and, once they had settled their claim with…

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Freer v Earthquake Commission [2023] NZHC 3662
Case
[2023] NZHC 3662
Decision Date

CaseChat Overview and Summary

The case of Freer v Earthquake Commission involved the plaintiffs, owners of residential land that suffered damage due to the Canterbury earthquakes, challenging the Earthquake Commission's (EQC) practice of settling claims for increased liquefaction vulnerability (ILV) land damage based on the diminution of value (DOV) rather than the cost of repair. The plaintiffs sought to represent a class of similar property owners in a representative proceeding, arguing that EQC's policy and strategy were unlawful. The court had to determine whether the plaintiffs could bring a representative action, if they were suitable representatives, if the proposed class was correctly defined, and whether the proceeding should proceed on an opt-in or opt-out basis. The court found that the plaintiffs could bring the proceeding, were suitable representatives, the class was not correctly defined, and the proceeding should proceed on an opt-out basis. The court held that EQC's use of the DOV approach and its strategy to settle claims on a DOV basis, regardless of individual circumstances, were suitable common issues for the proceeding. The court also found that the plaintiffs were adequate representatives, despite not having undertaken repairs to their land, and that the proposed class was not correctly defined as it included persons who could not have suffered any loss and those for whom repair was not feasible or wanted. Finally, the court ruled that the proceeding should proceed on an opt-out basis as the opt-in approach did not sufficiently address the potential disadvantages to class members and the objectives of access to justice and efficient use of judicial resources.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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