[1] 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 that, after purchasing the property, she discovered the EQC repairs did not repair the property to the standard required by the Earthquake Commission Act 1993 (the Act), and the additional repairs to bring the work up to the standard under the Act exceed the statutory cap. Ms Mathias brings a claim in negligence against EQC.

[2] In a judgment dated 23 August 2022, Ms Mathias was granted leave on an unopposed basis to sue as a representative plaintiff (the August 2022 Judgment).1

[3]The August 2022 Judgment recorded:

[2] While the application is not opposed by The Earthquake Commission (EQC), it is clear that the final form of the application represents significant input from EQC resulting in Ms Mathias amending her application to address EQC’s concerns.

[4] The August 2022 Judgment also recorded that the Class for whom Ms Mathias was to sue as representative had been worked through by the parties. The Class was set out in a schedule to the August 2022 Judgment.

[5] In essence, the parties came to Court in August 2022 with an agreed position. While that agreement did not bind the Court, nonetheless, the fact that the parties had reached an agreed position was unsurprisingly a significant factor in leave being granted for Ms Mathias to sue as a representative.

[6] The next step in the process was a hearing in November 2022 to determine the notice to be provided to the Class members. Ms Mathias also applied to vary the Class.

The 25 November 2022 Judgment

[7] The issues addressed in the 25 November 2022 Judgment (the November 2022 Judgment)2 were the terms of the Class Member Notice to make the public aware of their right to opt-in to the Class action, the process for giving that notification, that is,

1 Mathias v The Earthquake Commission [2022] NZHC 2097.
2 Mathias v The Earthquake Commission [2022] NZHC 3105.

the types of advertisement and whether there should be a direct mail out, and the terms of the Opt-in Form.

[8] In addition, Ms Mathias applied to vary the Class to change the opening words of the Class from “the owner” to “an owner”, which would allow intermediate property owners who retained the right to claim against EQC to join the Class. At the moment, only…

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 The Earthquake Commission

Details

AGLC: Mathias v The Earthquake Commission [2023] NZHC 705
Case: [2023] NZHC 705
Decision Date: 31 March 2023

CaseChat Overview and Summary

Carol Ann Mathias purchased a property that had been damaged in the Canterbury earthquakes. She brought a claim against the Earthquake Commission (EQC), alleging that the repairs to the property did not meet the standard required by the Earthquake Commission Act 1993 and that the additional repairs to bring the work up to standard exceed the statutory cap. Mathias sought leave to appeal against the November 2022 Judgment, which declined her application to vary the Class and made various orders in relation to the procedural aspects of the representative action. EQC opposed the application for leave to appeal.

The Court considered the principles that apply to the granting of leave. The Court noted that the matters subject to the November 2022 Judgment were matters of discretion or case-specific case management issues. The Court also considered the principles that apply to the variation of consent orders. The Court noted that the application to vary the Class was declined for two reasons. First, changing the substance of the Class was not within the leave reserved to vary the orders and, even if it had been, the proposed variation created conflicts of interest between potential Class members.

The Court considered the issues with the giving of notice to class members that Mr Shand wished to appeal. The Court rejected the submission that it was an error to limit direct notice of the right to opt-in to 2,653 homeowners. The Court also rejected the submission that there were arguable errors in the issues concerning the notice of alternative settlement options and the on-sold policy conditions. The Court noted that these were case management matters and did not warrant an appeal. Finally, the Court noted that Mr Shand had not demonstrated that the four and a half month time period for the opt-in period was arguably wrong.

Leave having been declined in respect of all the points Mr Shand wished to raise on appeal, his application was dismissed. Costs were to follow the event on a 2B basis plus disbursements as fixed by the Registrar.

Orders