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Mathias v Earthquake Commission

Mathias v Earthquake Commission

Case [2022] NZHC 2941 9 November 2022

Civil Litigation & Procedure

Class Actions

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-009-2441

[2022] NZHC 2941

BETWEEN
CAROL ANN MATHIAS

Plaintiff

AND

THE EARTHQUAKE COMMISSION

Defendant

Hearing: 8 November 2022 (By telephone)

Counsel:

G Shand for Plaintiff

C J Curran and M L Campbell for Defendant

Judgment:

9 November 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Application for directions in relation to interim settlements and access to funding agreement)

MATHIAS v THE EARTHQUAKE COMMISSION [2022] NZHC 2941 [9 November 2022]

[1] The background to this judgment is set out in my judgment of 23 August 2022.1 Ms Mathias was granted leave on an unopposed basis to sue as a representative plaintiff.

[2] Ms Mathias purchased a property in September 2015 that had been damaged in the Canterbury Earthquakes but which she understood had been repaired by The Earthquake Commission (EQC). Ms Mathias says after purchasing the property she discovered the EQC repairs did not remediate the property to the standard required by the Earthquake Commission Act 1993 (the Act) and the additional repairs required to bring the work up to the standard under the Act exceed the statutory cap. Ms Mathias brings a claim in negligence against EQC.

[3] On 14 November 2022 a hearing is scheduled to determine the notice to be provided to class members, and Ms Mathias’ application to vary the class.

The current applications

[4] On 25 October 2022, EQC sought two orders on an urgent basis. The first is that EQC may continue on an interim basis to negotiate and settle with individual customers who fall within the represented class with whom the process of resolving their individual claim is underway or, the customer is already participating in the Government’s on-sold policy. Second, directing counsel for the plaintiff to disclose the litigation funding agreement between the plaintiff and Canterbury Litigation Funding Ltd (the Funding Agreement), subject to any reasonable redactions relating to confidential, litigation sensitive or privileged information.

[5]Both applications are opposed.

Orders preserving EQC’s ability to settle

[6] The Court’s supervisory jurisdiction over representative proceedings extends to settlement communications with potential class members.2 Pursuant to that

1 Mathias v The Earthquake Commission [2022] NZHC 2097.
2 Ross v Southern Response Earthquake Services Ltd [2021] NZHC 2453 at [4(a)]. For more on the supervisory jurisdiction, see further Southern Response Earthquake Services Ltd v Ross [2020] NZSC 126, [2021] 1 NZLR 117 at [81], [85], [87] and [89]; Ross v Southern Response Earthquake

jurisdiction, the Court exercises a protective role over potential class members.3 The Court is concerned to prevent communications to class members that are misleading, coercive, or similarly unacceptable and where that is the case it may intervene to permit those communications.4

[7] The Court will be conscious of the potential for class members to be confused by communications from either party (or both) following an application by a representative plaintiff for approval of a class notice.5 A communication standing alone must…

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 2941
Case: [2022] NZHC 2941
Decision Date: 9 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Carol Ann Mathias sued The Earthquake Commission (EQC) for negligence. Ms Mathias claimed that her property, which she purchased in 2015, had not been properly repaired by EQC after the Canterbury earthquakes. She alleged that the repairs did not meet the standards required by the Earthquake Commission Act 1993 and that the additional repairs needed to meet those standards exceeded the statutory cap. EQC sought two orders on an urgent basis. The first was that it may continue to negotiate and settle with individual customers who fall within the represented class. The second was that Ms Mathias disclose the litigation funding agreement between her and Canterbury Litigation Funding Ltd. Both applications were opposed.

The court examined EQC’s request to continue settling with individual customers. It noted that the court’s supervisory jurisdiction over representative proceedings extends to settlement communications with potential class members. The court was concerned that communications from both parties could confuse potential class members. EQC argued that its proposed settlement notice would ensure no relevant EQC customer was misled by settling with EQC in ignorance of the representative proceeding. The court accepted EQC’s argument and made orders in terms of EQC’s application.

EQC also sought access to the Funding Agreement, arguing that it was required by the case law governing such disclosure. The court examined the New Zealand authorities on when the court will order the production of a funding agreement. The court noted that disclosure is not expected to be a routine step and rejected EQC’s application for access to the Funding Agreement. The court held that Mr Shand had formally confirmed the accuracy of the notice and found no reason not to accept his confirmation.

In conclusion, the court granted EQC’s application to continue settling with individual customers but declined EQC’s application for access to the Funding Agreement. Costs were reserved.

Orders