Mathias v Earthquake Commission - [2022] NZHC 3105

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-009-2441

[2022] NZHC 3105

BETWEEN
CAROL ANN MATHIAS

Plaintiff

AND

THE EARTHQUAKE COMMISSION

Defendant

Hearing: 14 November 2022 (By VMR)

Counsel:

G D R Shand for Plaintiff

N L Walker and C J Curran for Defendant

Judgment:

25 November 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

MATHIAS v THE EARTHQUAKE COMMISSION [2022] NZHC 3105 [25 November 2022]

[1] In 2015, Ms Mathias purchased a home that had been damaged in the Canterbury Earthquakes and repaired by The Earthquake Commission (EQC). Ms Mathias claims her home was poorly repaired by EQC and the cost to rectify that poor work exceeds any amount she would be entitled to under her statutory rights against EQC, leaving her with a substantial shortfall in respect of the repair costs. In this proceeding Ms Mathias asserts EQC owed a duty of care to subsequent owners of properties it repaired to have properly assessed and repaired earthquake damage.

[2] In August 2022, Ms Mathias was granted leave to continue her claim as a representative on behalf of:1

The owner of a residential building insured by s 18 of the Earthquake Commission Act 1993 … during the Canterbury Earthquake Sequence that commenced on 4 September 2010 and ended on 23 September 2011.

[3] Subsequently, counsel have been working on the next steps in this representative action which are:

(1)the terms of the class member Notice to make the public aware of their right to opt-in;

(2)the process for giving that notification, that is, the types of advertisement and/or direct mail out; and

(3)the terms of the Opt-in Form to be used by someone wishing to join the class action.

[4] Each of the above issues raises sub-issues, not all of which have been agreed, hence this application.

[5] In addition, Ms Mathias has applied to vary the class set out at [2] above, to change the opening words from “The owner” to “An owner” to permit intermediate property owners who retained the right to claim against EQC, as opposed to only the final owner of a property, to join the class. That variation is opposed.

1 Mathias v The Earthquake Commission [2022] NZHC 2097 where the full class definition is set out.

[6] As whether the class is to be varied will have a flow-on effect to the wording of the Notice to be given to the public, I deal with that matter first, then the terms of the Notice, followed by what might be called the mechanics and process of giving notice.

Amendment to the class

[7] Mr Shand, counsel for Ms Mathias, advances the application to amend the class pursuant to leave reserved in the judgment granting Ms Mathias leave to sue as a representative. That judgment provided:2 “Leave is reserved to the parties to apply to rescind and/or vary the rule 4.24 order”. Mr Shand relies on the apparent breadth of that reservation of leave. EQC, as…

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 Mathias v Earthquake Commission

Details

AGLC: Mathias v Earthquake Commission [2022] NZHC 3105
Case: [2022] NZHC 3105
Decision Date: 25 November 2022

CaseChat Overview and Summary

In the case of Mathias v The Earthquake Commission, the plaintiff, Carol Ann Mathias, brought a claim against the defendant, The Earthquake Commission (EQC), alleging that the repair work done by EQC on her property damaged by the Canterbury Earthquake was inadequate. Ms Mathias sought leave to proceed with a representative action on behalf of other property owners who had experienced similar issues with EQC's repairs. The court had to decide on the appropriate class definition, the content and process of notifying potential class members, and the funding and costs associated with the representative action.

The court declined to amend the class definition to include intermediate property owners who retained the right to claim against EQC. The court found that allowing such amendments would create potential conflicts between class members and complicate the proceedings. The court also approved the Notice of Opt-in Rights with some modifications, such as using the term "likely" to describe the cost of repairs exceeding EQC's statutory cap, and removing references to misleading statements on certain websites.

Regarding the process of notification, the court set an opt-in period of four and a half months to allow homeowners sufficient time to address their claims directly with EQC and decide whether to opt-in to the proceedings. The court ordered advertisements in newspapers and on social media platforms, with tailored personal notifications by ordinary post for a targeted group of homeowners who had previously applied to EQC's on-sold policy.

The court also addressed the funding and costs associated with the representative action. It confirmed that at stage two, there would be full funding for all class members, including solicitor and counsel fees, expert fees, and disbursements. Any adverse costs would be met by the funder. The court reserved general leave to seek further directions and ordered that the costs and disbursements incurred in giving effect to the above orders be costs in the cause.

Orders