GABRIEL v EARTHQUAKE COMMISSION [2018] NZHC 1255

GABRIEL v EARTHQUAKE COMMISSION [2018] NZHC 1255

Summary judgment was dismissed because the defendant did not establish beyond argument that the insured's statements were an unambiguous representation abandoning all claims; it was at least arguable the insured only referred to the EQC-excluded claim and the alleged representation was therefore ambiguous, so the...

Source-derived case information.

Citation
[2018] NZHC 1255
Parties
Plaintiff: M E Gabriel; Plaintiff: C E Gabriel; Plaintiff: Landley Trustees Limited (trustees of The ME & CE Gabriel Family Trust); First Defendant: Earthquake Commission; Second Defendant/applicant: Vero Insurance New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2018
Procedural Posture
Civil Insurance/contract (assignment of Insurance Claims) / Defendant's Summary Judgment Application (interlocutory)
Outcome
Defendant's interlocutory application for summary judgment dismissed; costs reserved.
Legal Topics
Waiver, Assignment of Claims, Summary Judgment, Interpretation of Representation, Reliance, Costs
Insurance Contract Civil Procedure Equity Property Waiver Assignment of Claims Summary Judgment +3 more

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Parties

M E Gabriel

Plaintiff

C E Gabriel

Plaintiff

Landley Trustees Limited (trustees of The ME & CE Gabriel Family Trust)

Plaintiff

Earthquake Commission

First Defendant

Vero Insurance New Zealand Limited

Second Defendant/applicant

Procedural Posture

Civil Insurance/contract (assignment of Insurance Claims) / Defendant's Summary Judgment Application (interlocutory)

Legal Issues

  1. 1 Whether an unambiguous representation was made constituting waiver
  2. 2 Whether the alleged waiver covered both EQC-excluded and EQC-included claims
  3. 3 Whether reliance on the representation was established

Ratio Decidendi

Summary judgment was dismissed because the defendant did not establish beyond argument that the insured's statements were an unambiguous representation abandoning all claims; it was at least arguable the insured only referred to the EQC-excluded claim and the alleged representation was therefore ambiguous, so the waiver defence could not be determined finally on summary judgment.

Court Disposition

Defendant's interlocutory application for summary judgment dismissed; costs reserved.

Orders

  • The second defendant's interlocutory application dated 23 November 2017 is dismissed.
  • Costs and disbursements of the application are reserved; if parties cannot agree, plaintiffs file submissions (four pages) followed within five working days by defendants' submissions, after which the Court will determine costs on the papers.