IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000116
[2018] NZHC 2403
BETWEEN WILLIAM FRANCIS GINIVAN AND
CAMERON DAVID BAILEY IN THEIR
CAPACITY AS TRUSTEES OF THE GIFT TRUST
First Plaintiffs
WILLIAM FRANCIS GINIVAN AND DIANE SHIRLEY CARSON
Second Plaintiffs
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED
Defendant
Hearing: 6 August 2018
Memorandum of Counsel for Plaintiffs – 10 August 2018 Memorandum of Counsel for Defendant – 15 August 2018
Appearances:
G A Cooper for First and Second Plaintiffs M A Powell for Defendant
Judgment:
12 September 2018
JUDGMENT OF GENDALL J
Introduction
[1] This is an interlocutory application relating to proceedings brought essentially by the first plaintiffs, the trustees of the Gift Trust (the trustees) against the defendant (Southern Response). The application seeks orders in relation to the operation of an AMI Premier House Cover Policy (the policy) which the trustees hold over a residential property they own at 24 Thorrington Road, Cashmere, Christchurch (the property).
GINIVAN v SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD [2018] NZHC 2403 [12 September 2018]
[2] The rights and obligations under the policy previously owed by AMI Insurance Ltd (AMI) have been assumed by the defendant (Southern Response).
[3] At the material times, the second plaintiffs resided at the house on the property as their family home. The house sustained substantial earthquake damage in the Christchurch earthquake sequence beginning in 2010. The property it appears is situated on TC3 land and is in a designated flood zone. The parties have agreed the house is not economic to repair. The trustees, however, have elected to rebuild the house on the property.
[4] In the present application, the trustees seek orders from the Court requiring Southern Response to approve and provide funding for expert engagement expenses for the rebuild of the house in accordance with the terms of the policy. In the alternative, the trustees seek an order for an interim payment by Southern Response of a global figure to be held in trust on account of invoices rendered by experts engaged by the trustees. The trustees complain that this has arisen because Southern Response’s mechanisms for approving the expenses to be incurred with their chosen experts are cumbersome and slow. The trustees say they are not working. They are unhappy with the position Southern Response has taken, which they say is a refusal to approve and pay for the experts that the trustees have put forward.
[5] Southern Response disputes this and maintains it is complying with its obligation under the policy. It says this obligation is simply one to reasonably consider a request from the trustees to approve and pay for nominated experts and, having done this, to either approve or decline the request in full or in part. Southern Response says that if the trustees do not agree with the position it takes as insurer, the onus is on the trustees to show that this position is in breach of the policy. Southern Response takes the…
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- Case
- [2018] NZHC 2403
- Decision Date
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