Nand v Tower Insurance

[2016] NZHC 1455

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2111 [2016] NZHC 1455

BETWEEN

NITYA NAND AND SUNITA NAND

Plaintiffs

AND

TOWER INSURANCE LIMITED Defendant

Hearing:	14 June 2016
Appearances:	A M E Parlane for the Plaintiffs A Sherriff for Defendant
Judgment:	29 June 2016

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on  29 June 2016 at 5:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………………………………….

Registrar/Deputy Registrar

Solicitors:

Angela Parlane, Auckland, for Plaintiffs

Duncan Cotterill (Aaron Sherriff), Wellington, for Defendant

NAND v TOWER INSURANCE [2016] NZHC 1455 [29 June 2016]

[1]      In 1999 Mr and Mrs Nand bought a rental property at Flatbush, Manukau and insured it.   On 1 July 2012 there was a fire at the property and the house was extensively damaged.   They made a claim under their insurance policy but the insurance company turned them down.   At the time of the fire the Nands’ son, Nicholas, was living in the house – they say, as a tenant. Tower, the insurer, says that he let other people onto the property and, with his knowledge, they began cooking methamphetamine.  Something went wrong and a fire started.  Their son was later prosecuted under the Misuse of Drugs Act.   Tower does not suggest that Mr and Mrs Nand   were   in   any   way   involved   in   manufacturing   methamphetamine manufacture at the Flatbush property.  They live elsewhere in Auckland and knew nothing about it.  But Tower says that on these facts the terms of the insurance policy entitle it to decline the Nands’ claim.  It says that the matter is so clear-cut that it has applied for summary judgment.

[2]      Since the start of this proceeding, Mr Nand has died.   He and his widow owned both the Flatbush property and the insurance policy jointly.  Mrs Nand has taken his interest under the policy by survivorship.

[3]      The  principles  on  which  the  courts  act  on  defendants’  applications  for summary judgment are well-established and do not need to be repeated.  The Court of Appeal’s decision in Westpac Banking Corporation v MM Kembla New Zealand Ltd remains authoritative.1

Shortcomings in Tower’s evidence

[4]      Some matters are not contentious:   the Nands’ ownership of the Flatbush property, that they insured the property with Tower, the terms of the certificate of insurance and the policy, the fire on 1 July 2012 and Tower’s declinature.   Other matters, especially those going to Tower’s affirmative defences, are disputed.   For

those parts of the case, Tower relies largely on hearsay evidence.

1      Westpac Banking Corporation v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at

[58]-[64].

[5]      The following evidence of Tower is inadmissible as hearsay that does not qualify under ss 16- 20 of the Evidence Act 2006:

(a)      Paragraphs  8  and  9  of  the  affidavit  of  Mr  Roe,  Tower’s  claims manager, (reporting on fire cause investigations) passing on information given by others.

(b)Paragraph 8 of the first affidavit of Mr Iafeta, Tower’s investigator, as to information given by the son.