Weir v IAG New Zealand Limited

[2019] NZHC 3282

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-665

[2019] NZHC 3282

BETWEEN

SCOTT DAVID WEIR AND REBECCA ANNE WEIR

Plaintiffs

AND

IAG NEW ZEALAND LIMITED

First Defendant

AND

BAINBRIDGE HOMES LIMITED
Second Defendant

AND

QBE INSURANCE (AUSTRALIA) LIMITED

Third Defendant

AND

CHRISTCHURCH CITY COUNCIL

Fourth Defendant

Hearing:

9 December 2019

(By way of telephone conference)

Counsel:

S D Weir self-represented Plaintiff R A Weir self-represented Plaintiff T J Wood for First Defendant

K L Maclean for Second Defendant S D Galloway for Third Defendant

Judgment:

12 December 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 12 December 2019 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 12 December 2019

WEIR v IAG NEW ZEALAND LIMITED [2019] NZHC 3282 [12 December 2019]

[1]        This matter was the subject of a telephone conference on 9 December 2019 which was scheduled for case management purposes as the proceeding had not advanced.

[2]        Relationship issues between the plaintiffs and the fact that they are now self-represented, have contributed to their inability to advance matters.

[3]        Things have got to the point in terms of case management where the defendants have foreshadowed an application to have the proceeding dismissed for a failure by the plaintiffs to advance the case.

[4]        That said, the plaintiffs’ case is that their home remains subject to unresolved earthquake damage together with claims for faulty repairs.

[5]        At a telephone conference held on 9 December 2019 to address the future of the proceeding, I suggested to the plaintiffs that a transfer to the Canterbury Earthquakes Insurance Tribunal (“the Tribunal”) may be a practical means by which the proceeding could be advanced.

[6]        Under s 16(1) of the Canterbury Earthquakes Insurance Tribunal Act 2019 (“the Act”), a plaintiff may apply to transfer a proceeding to the Tribunal or a judge on their own motion may do so.

[7]        Under s 16(2) of the Act, an order of transfer can only be made if the proceedings meet the  eligibility  criteria  under  s 9,  the  parties  have  been  given  a reasonable opportunity to comment on the application, and the Judge considers that transfer is in the interests of justice.

[8]        As the matter was raised by me in a case management telephone conference and given s 16(2)(b) requires the parties to be given a reasonable opportunity to comment on the prospect of transfer, no order of transfer was made at the telephone conference, but rather the parties were given time to advise and/or confirm their positions.

[9]        Counsel for the first defendant, IAG New Zealand Ltd, had anticipated the possibility of transfer and was in a position to consent to the transfer at the telephone conference. The plaintiffs at the conference were both in agreement to the transfer but leave was reserved for them to advise if they had changed their mind, given the matter was only raised by me at the conference. The second and third defendants have confirmed their consent to the transfer and the plaintiffs have not advised that they wish to change their position.

[10]      The proceeding concerns an earthquake claim relating to a domestic dwelling in Christchurch. I find the claim is an eligible claim for transfer as required by s 9 of the Act.

[11]      That the proceeding involves other parties in relation to the alleged defective repair aspects of the claim is no barrier to transfer.1

[12]As I noted in Busby v IAG New Zealand Ltd:2

[10]Section 3 of the Act provides:

3.        Purpose

The purpose of the Act is to provide fair, speedy, flexible and cost effective services for resolving disputes about insurance claims for physical loss or damage to residential buildings, property and land arising from the Canterbury Earthquakes.

…

[11]The Act confers on the Tribunal significant and flexible powers. It has the power to direct the parties attend mediation. It can adopt an inquisitorial process pursuant to s 40 of the Act. It can appoint expert advisors and if the Tribunal considers it appropriate, can refer questions of law to this Court.

[12]A significant aspect of the Tribunal’s processes is that the cost of mediation, the obtaining of expert reports, the obtaining of legal opinions from this Court and indeed the Tribunal’s hearings, are not met by the parties.

[13]      The above features of the Tribunal in my view, mean the transfer of this proceeding to the Tribunal is in the interests of justice.

1      Dewes v IAG New Zealand Ltd [2019] NZHC 2899 at [18].

2      Busby v IAG New Zealand Ltd [2019] NZHC 1852 at [10].

[14]      It is in the interests of justice for the defendants to know where they stand    in respect of this claim and for it to be advanced. The plaintiffs, given the breakdown in their relationship and the fact that they are unrepresented, will benefit from the pro-active and robust case management available in the Tribunal.

[15]Accordingly, I transfer this proceeding to the Tribunal.

[16]      There is no order as to costs in respect of the transfer application, the transfer being at my suggestion.

[17]      Costs in relation to steps in this Court remain for determination if not otherwise settled at the Tribunal.3

Associate Judge Lester

Solicitors:

Duncan Cotterill, Christchurch Hazelton Law, Wellington

Copies to:

S D Weir – self-represented Plaintiff RA Weir – self-represented Plaintiff

D H McLellan QC, Barrister, Auckland

Bainbridge Homes Ltd – Second Defendant

Christchurch City Council – Fourth Defendant

3      Fraser v Tower Insurance Ltd [2019] NZHC 2768.