Dreams to nightmares: Woman paying 2nd mortgage after quake-damaged unit wasn't repaired properly

Carol Mathias bought a quake-damaged unit more than 10 years ago with dreams of making it her home.

It had been damaged in the 2010 and 2011 Canterbury quakes and the Earthquake Commission (EQC) had undertaken repairs on the unit prior to her taking ownership.

But it wasn’t long before her dreams turned into nightmares.

Mathias, now 70, bought the Christchurch property in 2015, taking assignment of the vendor’s rights in respect of claims against EQC, now known as the Natural Hazards Commission (NHC).

After taking ownership, she soon discovered the EQC repairs had not remediated the property to the standard required by the Earthquake Commission Act.

It was then found the value of additional repairs required to bring the work up to standard under the Act exceeded the statutory cap on EQC’s liability, according to a recent Court of Appeal judgment.

Mathias was paid out what was due to her under the statutory cap in 2021.

However, she faced an uninsured gap, being the difference between her statutory entitlement and the actual cost to repair the property to the required standard.

Now she is the face of a class action involving more than 200 others who are seeking a combined $80 million in claims against earthquake assessments of their properties.

Mathias says the process has been nothing short of frustrating.

She pleaded her case with EQC, saying it had breached a duty of reasonable skill and care and was granted leave in 2022 by the High Court as representative plaintiff on behalf of other homeowners in her position.

“We have had lots of roadblocks,” she told NZME.

“It has been frustrating.”

In pursuing the proceeding, she was backed by Canterbury Litigation Funding (CLF) on behalf of 228 others with claims estimated at around $80m.

CLF focuses on funding class actions and cases relating to EQC and insurance companies.

The High Court delivered a judgment in June last year in which Associate Justice Owen Paulsen set down the proceeding for a 34-day trial in April 2027.

Justice Paulsen ordered $628,000 as a guarantee so the NHC would have funds available to cover their legal costs if they won the case and Mathias’s legal team couldn’t pay.

It was anticipated 19 witnesses, including nine experts would be called by NHC to give evidence, while CLF proposed to call three fact witnesses and a couple of experts.

Her legal team applied to the High Court for leave to appeal and for a stay of the order requiring the $628,000 security payment.

The High Court declined both applications, so CLF took the case to the Court of Appeal which has now upheld the decision.

Lawyer Grant Shand is acting for the group. Photo / Michael Craig

After 10 years, Mathias says she is still working to pay off a second mortgage on another unit she bought after moving out of the Aranui property.

“I just wanted to get out; I was sick of it; there was water pouring into the living area,” she told NZME.

She moved into the Woolston unit three years ago.

“I had to get a mortgage to buy this place; two lots of rates and two lots of insurance, which has forced me to keep working.”

Mathias said she still doesn’t understand what is going on.

“I don’t feel like I understand any more than I did on day one; I would like to see it settled sooner rather than later.”

Lawyer Grant Shand, speaking for the group, told the Court of Appeal that Justice Paulsen had made errors, and that the appeal was of general public importance, according to the judgment.

Shand said the judge erred in allocating the 2027 trial, falling “well short” of the fundamental objectives of High Court rules “to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application”.

He said the hearing should take five days and that Justice Paulsen was mistaken in dismissing statements about trial duration from senior lawyers representing clients with similar issues.

Shand referenced earlier proceedings that raised the same issues, which were allocated trials no longer than 15 days.

Justice Owen Paulsen. Photo / Chris Skelton, Pool

Justice Paulsen said the number of witnesses in earlier proceedings was “markedly fewer” than expected in the Mathias case, while Shand submitted that was “actually the whole point”, claiming the NHC wasn’t following its usual process and had instead “strategically employed a different approach in this proceeding to purposely delay and make this trial more difficult and complicated (and ultimately more expensive) than it needs to be”, according to the judgment.

He submitted the judge erred in not commenting about the “excessive number of witnesses” NHC proposed to call.

He submitted the judge erred in following other decisions in which security had been ordered in funded representative proceedings, because in those decisions, the litigation funder was, an overseas funder, while CLF, by contrast, was a New Zealand company.

Justice Neil Campbell. Photo / Michael Craig

Court of Appeal judges, Justice Sarah Katz and Neil Campbell saw no arguable error in the judge’s 34-day trial estimate.

They accepted Justice Paulsen’s decision in not accepting Shand’s submissions.

It was not a simple single house building defects claim, or that it ought to be “done in five days” as Shand submitted, Justice Paulsen had said in his decision.

It was a representative proceeding which asserted a multi-part and novel duty of care owed by a public sector actor delivering a large-scale emergency response in a distinctive statutory context over a period of around 10 years, he said.

Furthermore, a great deal was at stake, when Mathias was the representative plaintiff for around 228 class members with total claims estimated at around $80m, the judge said.

Justices Katz and Campbell said they saw no basis upon which an appeal court would reach a different conclusion from that of the judge case managing the proceeding.

They dismissed the appeal against the $628,000 security payment, saying Shand hadn’t attempted to explain why they should depart from the earlier decision.

While Shand referenced other cases, he submitted jurisdiction to order security for costs derived only from High Court Rules and not from the High Court’s inherent jurisdiction.

The judges referenced a 2009 case in which jurisdiction was available in a funded representative proceeding.

They said Shand hadn’t attempted to explain why the court should depart from its earlier decision.

And while Shand said the case and other following cases were distinguishable, as they concerned litigation funders based overseas, the case in point was backed by a New Zealand funder, the judges said in the decision.

Shand directed NZME to a statement published on the funder EQC On-sold class action website following the Court of Appeal decision.

“While it is believed the decision is wrong, there is no choice but to proceed with the dates and timings already set down by the High Court,” according to the statement.

“The trial is set down for 34-days commencing April 12, 2027; this is locked in as there are no further appeal rights available.”

Shand also directed NZME to CLF for comment.

CLF, in a statement told NZME the $628,000 security cost would need to be paid for the case to continue.

“The adverse costs award for this latest judgment will also need to be paid (the amount of this is currently unknown but it will be a much, much smaller number than the security for costs).

“Unfortunately, there is no further appeal rights available, even though we don’t believe this decision is correct.”

CFC said the latest judgment was disappointing as it didn’t ask why the NHC needed 19 witnesses.

“The trial length and number of witnesses drive the security for costs value.”

CFC said the EQC/ NHC had spent an “excessive amount” of $4.3m on the case “not including what they have spent in the last 12 months”.

The group said it would make a further Official Information Act request to find out the up-to-date costs of the action.

A media manager for the Natural Hazards Commission said it would not comment on the judgment.

Al Williams is an Open Justice reporter for the New Zealand Herald, based in Christchurch. He has worked in daily and community titles in New Zealand and overseas for the last 16 years. Most recently he was editor of the Hauraki-Coromandel Post, based in Whangamatā. He was previously deputy editor of the Cook Islands News.