Moorhouse Commercial Park Ltd v Vero Insurance New Zealand Ltd - [2024] 3 NZLR 567

Insurance contract — Burden on insured to establish breach — Balance of probabilities — More damage than insurer accepted — Not sufficient possible more damage — No shifting burden — Duty of good faith — Required to investigate — No need to prove no additional damage — No evidence was “bond loss” — No evidence bond loss detrimental effect value amenity or usefulness — No evidence bond loss was “physical damage”.

Expert Evidence — Daubert factors — Apply to novel scientific method or technique admissible evidence — Not apply to a particular method or technique to repair buildings — Not apply to expert engineering evidence extent of damage — But can help — More criteria more reliable — No well-established tests or standards, known error rates or peer reviewed articles whether bond loss occurred.

Insurance contract — “a condition substantially the same as new” — Not temporary or permanent — Issue whether specific repairs met standard — If not meet standard remain obliged to repair to standard unless accord and satisfaction or estoppel — Discussions establish agreement repair would meet standard — Bear in mind particular purpose and use — Repairs completed and proposed all met standard — Substantially the same in terms of functionality and aesthetics — Aesthetics not relevant if cannot be seen.

Building Consent — No declaration sought — Still appropriate to consider — Claim repair plan did not require building consent — Wording of exemption — Comparable building product — Same position — Not compete replacement — Building consent not required.