He v Earthquake Commission - [2019] NZCA 373

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA567/2017
[2019] NZCA 373

BETWEEN	XIAOMING HE Appellant
AND	EARTHQUAKE COMMISSION First Respondent
AND	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

Hearing:	30 July 2019
Court:	Brown, Collins and Goddard JJ
Counsel:	P A Cowey and A J Summerlee for Appellant M R Crotty and N L Walker for First Respondent R M Flinn and A R Moore for Second Respondents
Judgment:	20 August 2019 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay one set of costs to the first respondent and one set of costs to the second respondents, in each case for a standard appeal on a band A basis together with usual disbursements. We certify for second counsel.

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REASONS OF THE COURT

(Given by Goddard J)

Introduction

The appellant, Mr He, owns a property at 377 Selwyn Street in Christchurch. The principal building on the property (the house) is a house with a shop attached to it. There are also two freestanding garages. At the time of the Canterbury earthquakes in 2010 and 2011 the house was covered for natural disaster damage under the Earthquake Commission Act 1993 (EQC Act). The property was also insured with the second respondents (whom we refer to collectively as OMPL)[1] in respect of certain earthquake damage not covered by the Earthquake Commission (EQC), on the basis set out in the relevant insurance policies.
[1]Offshore Market Placements Ltd (OMPL) is a company that acts as agent for the underwriters of the relevant insurance policies.
The house suffered damage caused by the Canterbury earthquakes. Mr He made claims to EQC in respect of that damage. EQC paid approximately $16,000 for repairs to the house. Mr He considered that EQC’s liability under the EQC Act substantially exceeded this sum. Mr He also made claims to OMPL in respect of damage to the property, which OMPL did not accept. Mr He brought proceedings against EQC and OMPL in the High Court. The claim was largely unsuccessful, apart from a minor claim against EQC for repairs to plaster damage on a section of the perimeter foundation of the house.[2]
[2]He v Earthquake Commission [2017] NZHC 2136 [High Court Decision].
In the High Court Mr He advanced a number of claims in respect of damage to the property which he said had been caused by the September 2010, February 2011 and June 2011 Canterbury earthquakes. Mr He’s appeal to this Court is confined to two of the issues that were determined by the High Court:
(a)The High Court dismissed Mr He’s claims in relation to damage caused by the February 2011 earthquake, other than the minor damage to the perimeter foundation mentioned above.[3] The High Court held that Mr He had not established that there was any other damage to the house caused…

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] NZCA 373
Case: [2019] NZCA 373
Decision Date: 20 August 2019 at 10.00 am

CaseChat Overview and Summary

The appeal was brought by Mr He against the decision of the High Court dismissing his claims for earthquake damage to his property. The first respondent, the Earthquake Commission (EQC), was responsible for compensating Mr He for damage caused by the Canterbury earthquakes. The second respondents were insurance companies that had insured Mr He's property against earthquake damage not covered by EQC. The central issues on appeal were whether the February 2011 earthquake caused damage to the floors of the house, and whether EQC had met its obligations in relation to damage to one of the house's chimneys. The Court of Appeal held that Mr He had not established that the February 2011 earthquake caused material damage to the floors of the house. The Court found that there was no evidence of material changes in floor levels as a result of the earthquake, and that any observed damage was consistent with pre-existing static settlement. The Court also held that EQC had met its obligations in relation to the damaged chimney by paying for its removal and the cost of rebuilding it. The appeal was dismissed and Mr He was ordered to pay costs to the respondents.

Orders