He v Earthquake Commission - [2019] NZSC 149

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 119/2019
[2019] NZSC 149

BETWEEN	XIAOMING HE Applicant
AND	EARTHQUAKE COMMISSION First Respondent CERTAIN SYNDICATES OF LLOYD’S OF LONDON SEVERALLY SUBSCRIBED TO COVERHOLDER CONTRACT B0429CNG90466 AND CERTAIN SYNDICATES OF LLOYD’S OF LONDON SEVERALLY SUBSCRIBED TO COVERHOLDER CONTRACT B0429CNG110466 Second Respondents

Court:	O’Regan and Ellen France JJ
Counsel:	Applicant in person M R Crotty and N L Walker for First Respondent R M Flinn for Second Respondents
Judgment:	19 December 2019

JUDGMENT OF THE COURT

AThe application for an extension of time is granted

BThe application for leave to appeal is dismissed.

CThe applicant must pay costs of $2,500 to be divided equally between the first respondent and second respondents.

____________________________________________________________________

REASONS

Introduction

The applicant’s property (a house with a shop attached) was covered for natural disaster damage under the Earthquake Commission Act 1993 (the EQC Act) at the time of the 2010 and 2011 Canterbury earthquakes. The property was also insured with the second respondents (collectively, OMPL[1]) in respect of certain earthquake damage not covered by the EQC.
[1]Offshore Market Placements Ltd (OMPL) is a company that acts as agent for the underwriters of the relevant insurance policies.
The applicant’s house was damaged in the earthquakes. He made claims to EQC for the damage. EQC paid about $16,000 for repairs. The applicant considered EQC’s liability was much greater. He also made claims to OMPL for damage but these were not accepted. He sued EQC and OMPL in the High Court. The claim was largely rejected by Dunningham J except for a minor claim against EQC for repairs to plaster damage on a part of the perimeter foundation of the house.[2] The applicant’s appeal to the Court of Appeal was dismissed and he seeks leave to appeal to this Court.[3]

Background

[2]He v The Earthquake Commission [2017] NZHC 2136.

[3]He v Earthquake Commission [2019] NZCA 373 (Brown, Collins and Goddard JJ). An application for recall was dismissed on the basis it was “an attempt to re-litigate the factual findings made in the High Court, and confirmed by this Court”: He v Earthquake Commission [2019] NZCA 526 at [5].

In the High Court various claims were advanced but by the time the case reached the Court of Appeal there were two main issues. The first of these issues was described by the Court of Appeal in this way:[4]
The High Court dismissed [the] claims in relation to damage caused by the February 2011 earthquake, other than the minor damage to the perimeter foundation … The High Court held that Mr He had not established that there was any other damage to the house caused by that earthquake. Mr He challenges this factual finding. He says that the February 2011 earthquake caused material changes in the house’s floor levels, in particular in the north‑east corner. He claims that this damage should be remedied by replacement of the house’s foundations.
[4]At [3(a)] (footnote omitted).
On this issue, after…

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 He v Earthquake Commission

Details

AGLC: He v Earthquake Commission [2019] NZSC 149
Case: [2019] NZSC 149
Decision Date: 19 December 2019

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application from Xiaoming He, who sought leave to appeal a decision of the Court of Appeal. He sought to appeal the Court of Appeal's decision in He v The Earthquake Commission [2019] NZCA 373. The property owned by He was covered for natural disaster damage under the Earthquake Commission Act 1993. It was also insured with certain syndicates of Lloyd’s of London in respect of certain earthquake damage not covered by the Earthquake Commission. He sued the Earthquake Commission and the syndicates in respect of damage caused by the Canterbury earthquakes in 2010 and 2011. The High Court dismissed the claims, and He appealed to the Court of Appeal. The Court of Appeal dismissed the appeal. He now seeks leave to appeal to the Supreme Court.

The issues to be decided by the Supreme Court were whether the application for leave to appeal was out of time and, if not, whether leave to appeal should be granted. The application was out of time but, in all of the circumstances, the application for an extension of time was granted. The appeal was to be dismissed. There was no question of general or public importance or of commercial significance. The matters the applicant wished to raise had been carefully assessed by both the High Court and the Court of Appeal. The applicant's evidence was not preferred to that of the tenant in the house in relation to the issue of dislevelment. The application was also out of time. The Court granted the application for an extension of time but dismissed the application for leave to appeal.

The Supreme Court granted the application for an extension of time. The application for leave to appeal was dismissed. The applicant must pay costs of $2,500 to be divided equally between the first respondent and second respondents.

Orders