EQC and apportionment


In the recent High Court decision of Maryville Courts Trusts Board v EQC [2013] NZHC 1575 the Court (Associate Judge Osborne) had to consider the ability of the Maryville Courts Trust Board to recover $1,201,815 from EQC that represented the difference due from EQC by reason of a change in apportionment by EQC from 49% Sept/51% Feb to 10% Sept/90% Feb.  EQC had originally apportioned the damage at 49/51.  In reliance on this apportionment the MCTB settled the claim with its insurer for a certain anount.  EQC later sought to change its apportionment to 10/90 with the effect that there was a shortfall to the MCTB.  It sought summary judgment against EQC alleging that it was bound by its original apportionment.  The court in the context of a summary judgment could was not satisfied that EQC had no defence to the claim against it.  So the claim will proceed through the Court process as usual.  The estoppel cause of action against EQC looks to be a good case because there were representations by EQC, that were relied on by the MCTB to its financial detriment so that it would now be unfair to permit EQC to resile from the representations.