Community scoop » Court decision 'very helpful' for Canterbury earthquake claimants

Press release – Dean Lister

Dean Lister, a claims preparer in Christchurch, says the decision provides clarity in the area of ​​percentage fee agreements related to homeowners insurance claims.

November 13, 2024

The Supreme Court decision has provided clarity on what insurance claims advocates, who charge a percentage fee, can demand when it comes to the NRA's Out-of-Purchase Program (OSP).

Christchurch Proclaims Management appealed an August 2023 District Court ruling against them which found they were not entitled to a $51,083.36 “success fee” based on the OSP settlement. Judge that [1]In the case, Justice Toohey said that if Proclaims had established a claim, the equitable payment would have been “no more than $500”.

Proclaims appealed this decision and lost.

Dean Lister, a claims preparer in Christchurch, says the decision provides clarity in the area of ​​percentage fee agreements relating to homeowners' insurance claims.

“In this case, there were two areas being considered by the courts,” he says. “One was in relation to fees payable in relation to an insurance claim made under the EQC (now NHC), before it had been placed above the cap and into the OSP. The next part of the case was in relation to fees which Proclaims asserted were due once the claim had moved to the On Sold program ( ex gratia payment) – which is what happens when a claim is considered to be over the maximum payment and the maximum payment of $100,0000 plus GST is paid to the homeowner.

Lister says the appellate judge (Preston) was very clear that the EQC (NHC) is an insurance response, and that the OSP is a [2]An ex gratia response to resolve a potential negligence case.

“This finding by the judge provides clarity that Proclaims is not entitled to a success fee relating to OSP settlements, and any other homeowners in similar circumstances could be entitled to a refund if they had paid Proclaims or entered into the same agreement with us,” says Dean Lister. “Similar company.”

What is most important is that owners of 'sold' homes understand that there are two options available to them – follow the OSP path as laid out four years ago and with the support of your experts or engage a solicitor. On Sold was created with two goals in mind[3] – To “support a fair, timely and durable solution” and “minimize the potential risk and cost of litigation for both EQC and affected Canterbury residents”.

“Clearly we all want to avoid litigation if possible, so ensuring that the open selling program works effectively, as designed, is absolutely key to ending this ongoing buildup of costs,” Lester says, “so ensuring that the open sale program works effectively, as it was designed, is absolutely key to ending this ongoing buildup of costs, Assistant Treasury Secretary David Seymour said last week.” .

He adds that the recent decision has brought clarity, which is very useful. He highlights the difference between the BAU (business as usual) part of EQC/NHC claims handling and OSP which he says they are sometimes confused about nowadays.

“I have been working with claimants who believe they are in OSP but have not been paid the maximum which means they are in the BAU (business as usual) portion of the EQC/NHC process. EQC/NHC has an unchanged obligation to meet the requirements under the EQC/NHC Act as an insurance response If the maximum claim is not paid at which time she can move to OSP.

[1] NZDC 12924 Declaration & Ors v Patelli & Cox

[2] An ex gratia sum may be paid to someone who has been harmed, although there is no legal requirement to pay it

[3] https://www.treasury.govt.nz/sites/default/files/2019-11/ocp-4190360.pdf Table 1 – Objectives

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