Sleight v Beckia Holdings Ltd

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000818

[2020] NZHC 2851

BETWEEN

JOAN MARGARET FRASER SLEIGHT and ALAN LEITHFIELD SLEIGHT
Plaintiffs

AND

BECKIA HOLDINGS LIMITED

(PREVIOUSLY FR 2012 LIMITED and FARRELL RESIDENTIAL LIMITED
First Defendant

ORANGE H MANAGEMENT LIMITED (PREVIOUSLY HAWKINS
MANAGEMENT LIMITED)

(In Receivership and In Liquidation) Second Defendant

IAG NEW ZEALAND LIMITED
Third Defendant

QBE INSURANCE (AUSTRALIA) LIMITED

Fourth Defendant

Hearing:

2 – 19 June 2020 and 20 – 22 July 2020

Appearances:

D J Cooper and M J Borcoski for Plaintiffs

N S Gedye QC, O V Collette-Moxon and M K Booth for Third Defendant

D H McLellan QC, S D Galloway and L Green for Fourth Defendant

Judgment:

30 October 2020

JUDGMENT OF GENDALL J

SLEIGHT v BECKIA HOLDINGS LTD [2020] NZHC 2851 [30 October 2020]

This judgment was delivered by me on 30 October 2020 at 3:00 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date

Table of Contents

Para
Introduction	[1]
Background	[23]
The Policy	[23]
Initial events involving the Sleights and IAG following the CES	[28]
Situation facing Canterbury after the CES	[36]
IAG’s Managed Repair Programme and the 2012 RSMA	[40]
Subsequent events leading to the Building Contract	[55]
Building Contract	[65]
Operational documents and forms subsidiary to the 2012 RSMA	[76]
Inadequately repaired and unscoped earthquake damage to the property	[79]
(a) Scoping issues	[80]
(b) Defects in the repair works	[81]
Roles adopted by the Sleights, Farrells, IAG, Hawkins and its Rebuild Solution Managers (RSMs)	[86]
Termination of the Building Contract	[90]
Building expert reports	[96]
QBE position – Hawkins’ Negligence (PI) Policy	[100]
Sleights’ causes of action	[101]
Sleights’ claims for breach of contract, negligence and under the CGA against Farrells	[102]
Sleights’ claim for breach of the Policy contract against IAG	[108]

A proper interpretation of the Policy	[112]
The Sleights’ four “Pathways”(Paths One, Two, Three and Four)	[154]
Sleights’ Path One Policy claim – Does IAG remain obliged to meet the cost of further repair work to restore the home to its “when new” condition?	[161]
Being a “to pay” policy – what is it that IAG promises to pay?	[163]
Conclusion on this Path One Policy claim	[194]
The Sleights’ Path Four Policy Claim against IAG – implied term	[196]
IAG’s affirmative defences to the Policy claims	[206]
Declarations sought by the Sleights regarding the enforceability of certain exclusion clauses?	[210]
Sleights’ claim under the Consumer Guarantees Act against IAG	[246]
Sleights’ negligence claim against IAG	[296]
Sleights’ estoppel claim against IAG	[319]
Slights’ claims in summary against Hawkins	[327]
Sleights’ claim under the CGA against Hawkins	[328]
Sleights’ negligence claim against Hawkins	[361]
Hawkins’ additional defences	[390]
IAG’s cross-claim against Hawkins	[401]
The 2012 RSMA claim	[401]
Operational documents and forms	[416]
-     100K Manual	[417]
-     Milestone Payment Change Procedure	[419]
-     Swimlane Document	[424]
-     RSM Site Inspection Report	[428]
-     MIV Inspection Report	[430]
-     Milestone Payment Inspection…