Richmond Hill Holdings Limited v IAG New Zealand Limited

Case

[2019] NZHC 380

8 March 2019

No judgment structure available for this case.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-738

[2019] NZHC 380

BETWEEN

RICHMOND HILL HOLDINGS LIMITED

Plaintiff

AND

IAG NEW ZEALAND LIMITED

Defendant

CIV-2018-409-739

BETWEEN

ALICE NOELLE SHANNON and ERIK CARLTON ELLIS

Plaintiffs

AND

IAG NEW ZEALAND LIMITED

Defendant

Hearing: 1 March 2019

Appearances:

P Woods and T Grimwood for Plaintiff B Cuff and C Henley for Defendant

Judgment:

8 March 2019


JUDGMENT OF ASSOCIATE JUDGE LESTER


Introduction

[1]    This is an  application  for  summary  judgment  by  Richmond  Hill  Holdings Ltd (“Richmond”)  and  Alice  Shannon  and  Erik  Ellis  against   IAG New Zealand Ltd (“IAG”). The two claims are brought in separate proceedings which were heard together. In substance, both claims raised the same issues so that in the hearing the parties referred to the Richmond claim throughout on the basis that their submissions applied to both proceedings. In this judgment I will refer to the

RICHMOND HILL HOLDINGS LTD v IAG NEW ZEALAND LTD [2019] NZHC 380 [8 March 2019]

“Richmond claim” throughout on the same basis, that is  that the judgment applies  to both claims. I will also refer to the “Tuawera property” being the property subject to the claim by Ms Shannon and Mr Ellis when relevant.

[2]    The  Richmond  claim  relates  to  a property  owned  by  the  plaintiff  at    69 Richmond Hill Rd, Redcliffs, Christchurch (“the Property”) which was damaged in  the  Canterbury  earthquakes   on   4 September 2010,   22 February 2011   and  13 June 2011. It is not in dispute that the Property was damaged by the Canterbury earthquakes or that the State Insurance Policy (State being part of the IAG Group) under a Landlord Comprehensive Policy (“the Policy”) should respond to the damage or that the Property is a rebuild rather than a repair.

[3]    The Tuawera property is at 36 Tuawera Terrace, Redcliffs, Christchurch. It is a two-storey split level weatherboard house with a detached double garage. The site is steep and sloping with multiple significant rock retaining walls. The Tuawera property was also deemed to be a rebuild by IAG.

[4]    At issue between the parties is the meaning and effect of IAG’s offer to cash settle both claims if the plaintiffs decided to accept a cash settlement.

[5]    IAG accepts it represented that a cash payment would be available but says it did not irrevocably commit to  making a cash payment based on the full cost of        a rebuild of the dwelling along with all associated work including any retaining walls, demolition costs, professional fees et cetera. It says that its internal policy is to exclude such items from its cash settlement offers.

Summary judgment principles

[6]    There was no dispute between counsel as to the applicable summary judgment principles. The plaintiffs need to satisfy the Court there is no arguable defence and the Court must be left without any real doubt or uncertainty in relation to the plaintiffs’ claim. The Court will not endeavour to resolve genuine conflicts of evidence or to assess the credibility of the deponents. A defendant needs to provide a proper foundation for a defence by its affidavit evidence or through its legal submissions.

[7]    In weighing up the evidence, the Court must take a robust approach, even though there may be differences in certain factual matters, if the lack of a tenable defence is clear on the material before the Court. If, however, the defendant raises questions of fact that cannot confidently be resolved on the affidavit evidence then summary judgment is usually inappropriate.

Background

[8]    The Property was built in about 1910 and is a three-storey split-level weatherboard house with a detached double garage, sleep-out and wired spa pool. The house is described as having “significant character features”.

[9]    The site is steep and rocky with walk-on access only. All of these issues contribute to a significant rebuild cost in particular in relation to retaining walls.

[10]   Following the earthquakes, Richmond submitted various claims to the Earthquake  Commission  (“EQC”),  which  accepted  that  cost  of  attending  to   the damage to the property exceeded the limit of EQC cover and made payments which need not be detailed here.

[11]   The plaintiffs claimed under their policies with IAG, which confirmed that the policies would respond.

[12]   In August 2013, IAG informed Richmond that the Property was a rebuild and that remains the position as confirmed by Mr Cuff for IAG during the hearing.

[13]   Following the advice that the Property was a rebuild, Ms Gapper, who was then the Claims Technician Manager at IAG dealing with the claim, sent an email to Richmond. The email of 8 August 2013 included:

As suggested, both the dwellings are rebuilds.

What I need you to consider are your options …

Do you want to rebuild them both with State’s involvement? Do you want to cash settle on both?

Do you want to cash settle on 1 and rebuild the other with State’s involvement?

Other?

Have a think about it – if you have any more questions I am only a phone call or email away. (emphasis to ‘dwellings’ added)

[14]   On 17 September 2013, Ms Shannon sent IAG an email which included the following:

Our only queries relates to point 4, being that we understand that the valuations were based on the property values as at 3/9/10 not the present value?

Also we understood (from Teresa) that if we do end up accepting a final cash settlement as opposed to having State manage the re-builds then this figures would be based on the actual rebuild costs not the ‘present value’?

[15]   Ms Gapper replied within 30 minutes with the relevant part of her email stating:

If you do decide to cash settle then yes it will be on rebuild costs and not present value. These rebuild figures will be established based on information we get from Davis Langdon QS.

[16]   Richmond then says it received a document called “IAG Cash Settlement Fact Sheet” (“the Fact Sheet”), which set out five steps to cash settlement in brief terms.

[17]Step 2 is under the heading “Agreeing the Settlement Amount”. It says:

Once your assessment is complete and you’re happy that all details have been captured, we will cost the project and your Cash Settlement Specialist will present you with a settlement amount.

The settlement amount is the cost to reinstate your house less:

·     any EQC payments you have received and

·     any excesses you need to pay. (emphasis added)

[18]   Richmond’s claim therefore is that IAG irrevocably committed to Richmond having:

(a)the option to cash settle its claim; and

(b)that if it elected to cash settle, the amount it would receive would be based on actual rebuild cost.

[19] As will be discussed further in relation to unconscionability, IAG does not dispute that it irrevocably committed to giving Richmond an option to cash settle. The issue is in relation to what IAG is obliged to include in its cash offer. Richmond’s position is that the emails mean that it would receive a one-off lump sum cash payment representing the rebuild costs for the properties on a full and final basis. IAG’s position is that it would cash settle the value of the dwellings and that is why I have emphasised the reference to ‘dwellings” in the email of 8 August 2013 referred to at para [13]. IAG would then pay for what were called either “excluded items” or “the “non-cash items” as and when the costs of those items were incurred. I will refer to them as the “excluded items”. It is common ground that the excluded items are as follows:

(a)retaining walls;

(b)contingency;

(c)future increased costs;

(d)demolition; and

(e)professional fees.

Cause of action

[20]Richmond’s cause of action is in estoppel.

[21]   Richmond says that the representations contained in the emails of Ms Gapper reinforced by the Fact Sheet were unequivocal representations as to the basis upon which a cash settlement offer would be calculated.

[22]   The statement of claim pleads reliance, and that given in particular the passage of time since the statements were made and the nature of the reliance, it is unconscionable for IAG to depart from the representations.

Events post September 2013

[23]   Approximately  five  years  after  the  communications  referred  to  above,    a settlement offer was made by IAG to cash settle Richmond’s claim but with that offer excluding the value of items listed at para [19] above.

[24]   In the intervening years, the parties went about trying to assemble rebuild costings. Richmond’s evidence recounts its co-operation in making time available to show various contractors through the  Property to assist with obtaining costings.    Ms Shannon was responsible for managing much of the administration of the claim. Ms Shannon is the partner of Dr Ellis who is the shareholder and director of Richmond. Ms Shannon’s affidavit recounts that during this period she was diagnosed with cancer and undergoing surgery and cancer treatment.

[25]   In her affidavit, Ms Shannon explains seeking and compiling information in respect of various elements of the rebuild of the Property to ensure that the costs would be as accurate as possible.

[26]   The process of collating costings continued into 2016 with Ms Shannon recounting that she considered that the information upon which the quantity surveyor was commissioned to base their reports was not sufficient. She says that no engineering analysis or design had been done to give any idea what would be required for the rebuild, nor had issues such as asbestos been addressed.

[27]   In August 2017, IAG instructed engineers to provide structural design for the rebuild of the dwellings, outbuildings and retaining walls.

[28]   A price from a building company was also commissioned, with it being common ground that the parties agreed that Richmond would engage a builder to quote the price of the costing of demolition and rebuild of the garage and dwelling and that a landscaper would cost the price of demolition and the rebuild of site works.

[29]   Matters progressed with various costings being obtained by Richmond and forwarded to IAG through the first half of 2018.

[30]   On 25 June 2018, Richmond received an email from IAG saying that the costs were being reviewed and wanting to visit the Property. Mr Beatson, a Settlement Specialist for IAG, visited the Property on 28 June 2018.

[31]Ms Shannon emailed IAG on 2 July 2018 saying:

Finally in the interest of clear communication and to save unnecessary stress or waste of time for all parties. As discussed with you during your visit, Erik’s and my expectations as per the agreement we originally made with IAG is we are working towards full and final cash settlements based on the costings provided for all aspects of our properties and as such we have taken extensive advise on all matters.

[32]IAG did not respond to the reference to the agreement referred to in the email.

[33]   Ultimately, as already noted, an offer was presented which deducted the excluded items from the total cost of rebuilding. The parties were unable to reach agreement and these proceedings followed.

Elements of the estoppel cause of action

[34]   The availability of estoppel as a cause of action is discussed in detail by the Court of Appeal in Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd.1 In brief, it must be shown that:2

(a)a belief or expectation by Richmond was created or encouraged by words or conduct by IAG;

(b)to the extent an express representation is relied on, it is clearly and unequivocally expressed;

(c)Richmond reasonably relied to its detriment on the representation; and


1      Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567.

2 At [44].

(d)it would be unconscionable for IAG to depart from the belief or expectation.

[35]   In Wilson Parking, the Court with reference to the decision of Katz J in the High  Court,  set  out  the  approach  to  be  adopted  when  considering  whether      a representation was clear and unequivocal. The Court referred to Her Honour’s finding that the meaning must be assessed objectively by the standard of a reasonable person in the position of the representee. It was also necessary to examine the circumstances in which the representation was made as well as the actual language used.3

[36]   The statements fall to be considered in the context of their surrounding circumstances.

A representation, but of what?

[37]   The relevant statements are the IAG email of 8 August 2013, the email exchange  of  17 September 2013  and  the  Fact  Sheet  received  on  or  around     20 September 2013.   Mr Cuff for IAG submitted that the reference in the email of   8 August 2013 to the dwellings meant that the subsequent reference to a cash settlement should be construed as meaning the cash settlement only related to the dwellings and did not include the excluded items.

[38] Mr Cuff also noted that the first part of the 17 September 2013 email reproduced at [14] above was in the context of the parties discussing an indemnity payment as an interim settlement. An earlier email in the sequence relating to the indemnity payment provided a valuation of the dwellings only as it was the dwellings which were subject to the indemnity payment.

[39]   Mr Cuff submitted that against that background, the reference to “rebuild costs” in Ms Gapper’s 17 September 2013 reply would be read as relating only to the dwelling rebuild costs as the first part of the email related to dwelling values.


3 At [47].

[40]For convenience, I set out the reply again:

If you do decide to cash settle then yes it will be on rebuild costs and not present value. These rebuild figures will be established based on information we get from Davis Langdon QS.

[41]   This email is not referred to again in any subsequent correspondence from IAG.

[42]The notice of opposition to the summary judgment asserts:

There was no clear and unequivocal representation from the Defendant that it would offer a cash settlement to the Plaintiff on the basis of full replacement costs for all aspects of the property owned by the Plaintiff. Any communications from the Defendant about cash settlement as an option for the Plaintiff were clearly conditional on the receipt and review of rebuild costs to be provided by an independent expert.

[43]   Mr Cuff accepted that the emails contained a statement by IAG that it would make a cash settlement but not a payment that included the excluded items.

[44]   Mr Cuff said in effect that IAG remained ready, willing and able to give effect to the representations as it understood it to mean, that is cash for the dwelling together with further cash for the excluded items when those costs were incurred.

[45] I am unable to find in the email reply set out at [40] above, or any other contemporary email, any statement or suggestion that the statement that a cash settlement figure would be based on rebuild costs would include only on some aspects of the dwelling rebuild costs being paid upfront with the balance paid when incurred.

[46]   The IAG email of 17 September 2013 is in my opinion unequivocal that if Richmond decides to cash settle, the figure would be based on the rebuild cost. There is no basis for reading in that the rebuild cost would be subject to certain exclusions to be paid subsequently.

[47]   The sentence in the IAG email of 17 September 2013, “These rebuild figures will be established based on information we get from Davis Langdon QS”, does not confer on IAG the ability to exclude items that are part of the cost of rebuilding. That the value of each component of the rebuild will be based on expert advice is not a

reservation by IAG of the right to exclude from the cash settlement option certain components which are a necessary part of a rebuild.

[48]   To rebuild the dwelling, design and demolition costs will need to be incurred and some or all of the retaining wall work done before work commences on the dwelling. Reliance on the reference to dwelling in the email of 8 August 2013 and then to rebuild costs would not naturally lead a reasonable recipient of the email to conclude what was being offered in the cash settlement was in effect carpentry and other trades relating to the rebuild of the dwelling alone. As the excluded items are a natural aspect of a rebuild a reference to a payment based on “rebuild costs” would be read as including those items.

[49]   IAG has filed an affidavit from its General Manager of Disaster Recovery, Ms Purvis, setting out IAG’s approach to settlements after the Canterbury earthquake sequence. Ms Purvis gives evidence of IAG’s dealings with its reinsurers and how it obtained approval to make cash offers. She also sets out IAG’s approach to site-specific works (which cover the excluded items) and says that:

IAG’s policy has been that retaining walls and other site specific works are generally not cash settled above the EQC payment.

[50]   The short point is, Ms Purvis’ evidence in relation to IAG’s internal policies and processes is just that. In the absence of these qualifications or guiding principles around cash settlement being made known to Richmond, the internal policy is not capable of qualifying what is contained in the direct communications.

[51]   The  Fact  Sheet  received   by   Richmond   only   a   few   days   after   the 17 September 2013 exchange, in my opinion, reinforces what could reasonably be understood from IAG’s 17 September 2013 email.

[52]   Caroline Emile replaced Ms Gapper as the Claim Manager in November 2013. While Ms Emile in her affidavit on behalf of IAG says that IAG has no record of the Fact Sheet being personally sent to Ms Shannon, she acknowledges that IAG did send it to its customers as part of an information pack setting out the cash settlement process. Ms Shannon’s email to IAG of 23 September 2013 concludes with thanking

IAG for sending the “Rebuild” booklet. Given Ms Shannon’s sworn evidence that she received the Fact Sheet and her contemporary reference to receiving the booklet of which the Fact Sheet was a part, I accept Ms Shannon’s  evidence on that issue.     Ms Emile says the booklet was designed to assist customers with making their cash settlement decision.

[53]   The Fact Sheet was part of a larger information pack which Ms Emile produces. While in relatively fine print at the bottom of page 2, it is recorded that:

This information sheet is a general guide only and is not necessarily complete. We reserve the right to change, update or correct any information from time to time without notice. For a complete description of your cover, refer to your policy wording, policy schedule or any other relevant policy documentation. You can also contact your claims case manager for detailed information in relation to your claim.

[54]   There was no communication from IAG to Richmond “changing, updating or correcting” the contents of the 17 September 2013 email or the Fact Sheet until        a meeting on 24 July 2018 when it was stated by IAG that its cash offer could exclude some items when an offer was made. Richmond’s point is that advice came too late given their claimed reliance.

[55]   Accordingly, I consider that there was a clear and unequivocal representation by IAG that:

(i)Richmond would have the option of cash settlement;

(ii)if Richmond did opt for a cash settlement, the amount that it would be offered would be based on rebuild costs including the value of the excluded items; and

(iii)the rebuild costs would be established based on information from Davis Langdon QS (with the named quantity surveyor subsequently being amended by agreement).

Reliance must be reasonable

[56]   I have no difficulty concluding that the plaintiffs’ reliance was reasonable. An insured presented with an email stating that a cash settlement would be based on rebuild costs is entitled to rely on that. The email of 8 August 2013 was reinforced by the email of 17 September 2013 and the Fact Sheet.

[57]   Mr Cuff for IAG does not argue that the emails did not make representations to the plaintiffs. It is implicit in his client’s position that had the insured construed the emails as IAG would have them  read,  then  it  would  have  been  reasonable  for the plaintiffs to have relied on the emails. In short, IAG’s position in respect of reliance being unreasonable is tied to their position as to what the emails mean.

[58]   However, in my opinion, when an insured asks a specific question about the basis of a cash settlement and receives what I consider to be an unequivocal answer, it is entitled to rely on that answer. IAG presented a consistent position to the plaintiffs from the email of 8 August 2013 through to the Fact Sheet. That a formal printed booklet, including the Fact Sheet, was sent out of itself conveys that the statements in it could be relied on.

Reliance

[59]Richmond’s submissions asserted the following incidences of reliance:

(a)Richmond did not elect to have IAG manage the rebuild of the Richmond House or elect to rebuild it themselves, both of which could have been completed years ago;

(b)Richmond expected to be able to decide how and when to rebuild the Richmond House once they had received the cash settlement without needing to deal with IAG in anyway;

(c)Richmond forwent the opportunity to earn rental income from the Richmond Property between the time that IAG would have completed the rebuild to now; and

(d)Richmond, through the efforts of Alice Shannon, spent considerable time in facilitating accurate costings for the Quantity Surveyors report so that IAG could provide Richmond with an accurate rebuild cash settlement offer. The emails in TBOP at pages 200, 206, 207, 209, 210, 213-225 provide a small example of the voluminous

correspondence between the Richmond/Tuawera Plaintiffs, various contractors and IAG.

[60]The notice of opposition asserts that even if a:

Personal, clear and unequivocal representation can be established by the Plaintiff (which is denied) the Plaintiff did not rely on the representation to their detriment.

[61]   The issue of reliance is more problematic. Items (a) and (c) above, relate to the effects of the rebuild being delayed. The plaintiffs say that if they had been told a cash offer would have the exclusions in issue in this case, they would have had IAG manage the rebuild or elect to rebuild themselves with IAG meeting the costs as incurred. They say that either approach would have meant the houses would have been rebuilt years ago.

[62]   The Property was rented to tenants before the earthquakes. Ms Shannon and Dr Ellis and their family had moved to the Tuawera property prior to the earthquakes as it offered easier access. Post earthquake they moved to the Property because of the damage to the Tuawera property and because their accommodation cover had run out. They say that had they made the decision to rebuild in late 1993, either managed themselves or through IAG, the properties would both now be completed and the Property  would  have  been  available  to  generate  rental  income.  At  this  time  the Tuawera property remains unoccupied because of its damaged state.

[63]   Mr Cuff says that whatever option was pursued – a cash settlement as understood by the plaintiffs, an IAG-managed rebuild or a plaintiffs-managed rebuild, delays would have occurred. This is because final costings were required for either option.

[64]   Why the costings for the rebuild were not collated until mid-2018 cannot be determined on the strength of the affidavit evidence. There is the suggestion that delay has occurred with some of the consultants engaged, through the specifications that consultants were asked to cost not being sufficiently accurate or comprehensive, and through Ms Shannon’s illness. A detailed timeline identifying where time was lost and who (if anyone) was responsible cannot be established in this application.

[65]   However, given the view I have taken of unconscionability, it is not necessary to come to any concluded view on this point.

Unconscionability

[66]Unconscionability and reliance are interrelated.

[67]As to unconscionability, the notice of opposition says:

It is not unconscionable for the Defendant to depart from the Plaintiff’s alleged belief in circumstances where the Defendant has offered cash settlements to the Plaintiff on the basis of rebuild costs provided by independent builders, which were rejected by the Plaintiff.

[68]In her affidavit, Ms Emile says:

On 7 August 2018, IAG then sent the Insureds a without prejudice offer based on the costs to rebuild the dwelling, outbuilding/s and non-EQC external items at the Property, as per the parties’ intentions ever since the earthquake sequence. As per IAG’s standard position the offer did not include allowances for retaining walls, contingency, future increased costs, demolition or professional fees or other policy benefits. However, IAG informed the Insureds that these costs would be paid as they were incurred.

[69]   This is an acceptance that it was the common intention of the parties that there would be a cash settlement, but as a result of IAG’s standard practice the offer did not include the excluded items.

[70]   IAG’s position was developed and clarified during the hearing. Mr Cuff clarified that IAG accepted that it did represent to the plaintiffs that it would allow them to cash settle, but his argument was that the scope of what was covered by the cash settlement was restricted upon a proper construction of emails. It was implicit in Mr Cuff’s position that it should have been known to the plaintiffs that in addition to the cash settlement of the dwelling, the balance of the costs associated with the rebuild (the excluded items) would be paid in accordance with the Policy terms, that is as incurred and upon IAG accepting prior to them being incurred that they were reasonable. In this way the cash offer, while agreed to be a departure from the terms of the Policy, was limited in its nature.

[71]As I have noted above, I do not accept this submission.

[72]   IAG accepts that it is bound by the August/September 2013 emails to allow the plaintiffs to cash settle. On its own interpretation of its obligation, it has met or is prepared to meet that obligation through making the payment for the dwelling and then meeting the further costs.

[73]For the avoidance of doubt, Mr Cuff accepted that:

(i)IAG had offered a cash settlement option and will stand by that option. That acknowledgment was given on the basis that the meaning of the cash settlement was as per Mr Cuff’s submissions set out above; and

(ii)if the plaintiffs opt to cash settle, IAG will make a cash payment to them based on the cost of rebuilding the dwelling and will pay the excluded items when they are incurred.

[74]   Having agreed that IAG committed to hold the cash settlement option open, Mr Cuff confirmed that IAG’s position in that regard was not a settlement position that could be withdrawn but represented IAG’s position as to how it would meet the cash settlement option.

[75]   Accordingly, Mr Cuff says if the Court concludes that the emails have the wider meaning contended for by the plaintiffs then while IAG does not accept that position, it stands ready and willing to provide what it says in substance meets the expectations of the plaintiffs.

[76]   Mr Cuff makes that submission because the plaintiffs’ stated position is that they intend to rebuild both properties  and  that  was  confirmed  by  their  counsel Mr Woods. Thus, Mr Cuff makes the submission that the only way that paying the excluded items as and when they are incurred can cause a detriment to the plaintiffs is if they do not in fact intend to reinstate.

[77]   Mr Woods meets this argument by saying that the cash settlement position advanced by IAG requires the plaintiffs to continue to liaise with IAG over the reasonableness of the costs for the excluded items. Mr Woods foreshadows difficulties

and potential disputes over the reasonableness of the amounts sought to be incurred for the excluded.

[78]   Mr Woods said that the advantage of a clean cash settlement which included the excluded items would be that the plaintiffs would have complete independence as to the design of the new dwelling(s) they want to build. He anticipated the possibility of disputes with IAG if a significant change in design had flow-on effects, for example, to the need of additional retaining walls or extra architectural/engineering costs.

[79]   I do not accept that the possibility of disagreement over the cost of the excluded items is a compelling point that makes the issue of unconscionability unarguable in a summary judgment context. The original email of 17 September 2013 from IAG made it clear that QS costings would be required. There are references in subsequent IAG emails to IAG reviewing the costings that the plaintiffs were obtaining, one example being the reference to IAG reviewing the costings of Chris Beer, a builder. Even if there was a significant change in design of the reconstructed house, it would only be if that change caused a cost increase over and above that which would have been incurred if the original dwelling had been rebuilt that IAG could say that it had been prejudiced through the change in design. The plaintiffs could not expect an open cheque book approach from IAG in respect of the excluded items, nor did they argue for that.

[80]   I accept that there is the potential for dispute in respect of costings for demolition and engineering et cetera, but that was always a risk of the cash settlement process contended for by the plaintiffs.

[81]   Mr Woods says that the rebuild cost that has been calculated by IAG at the moment and which are before the Court are known and certain figures. While that is correct, it is implicit through the plaintiffs confirming that they were not seeking summary judgment for an amount represented by those figures, that they accept that the figures are not beyond dispute.

[82]   Accordingly, the plaintiffs have not established that the defendant has no arguable defence in relation to the issue of unconscionability and there remain issues as to relevance. It follows the application for summary judgment is dismissed. Costs are reserved.


Associate Judge Lester

Solicitors:

Anthony Harper, Christchurch DLA Piper, Auckland

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