Hi
I am a New Zealand lawyer based in Wellington and will help you with your question today. Please give me a minute to read the question
You should have sued the insurance company direct under the Law Reform Act 1936
9 Amount of liability to be charge on insurance money payable against that liability (1) If any person (hereinafter in this Part of this Act referred to as the insured) has, whether before or after the passing of this Act, entered into a contract of insurance by which he is indemnified against liability to pay any damages or compensation, the amount of his liability shall, on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance money that is or may become payable in respect of that liability. (2) If, on the happening of the event giving rise to any claim for damages or compensation as aforesaid, the insured has died insolvent or is bankrupt or, in the case of a corporation, is being wound up, or if any subsequent bankruptcy or winding up of the insured is deemed to have commenced not later than the happening of that event, the provisions of the last preceding subsection shall apply notwithstanding the insolvency, bankruptcy, or winding up of the insured. (3) Every charge created by this section shall have priority over all other charges affecting the said insurance money, and where the same insurance money is subject to 2 or more charges by virtue of this Part of this Act those charges shall have priority between themselves in the order of the dates of the events out of which the liability arose, or, if such charges arise out of events happening on the same date, they shall rank equally between themselves. (4) Every such charge as aforesaid shall be enforceable by way of an action against the insurer in the same way and in the same Court as if the action were an action to recover damages or compensation from the insured; and in respect of any such action and of the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the Court shall have the same powers, as if the action were against the insured: Provided that, except where the provisions of subsection (2) of this section apply, no such action shall be commenced in any Court except with the leave of that Court. (5) Such an action may be brought although judgment has been already recovered against the insured for damages or compensation in respect of the same matter. (6) Any payment made by an insurer under the contract of insurance without actual notice of the existence of any such charge shall to the extent of that payment be a valid discharge to the insurer, notwithstanding anything in this Part of this Act contained. (7) No insurer shall be liable under this Part of this Act for any sum beyond the limits
Customer
The liquidator of the company my claim is against sent the claim to the Insurer via Aon and they have acknowledged the claim with number as it was the company who held the liability insurance only the liquidator could . I recently put a statement of Claim through court but last minute liquidator did not dispute claim but said it was not appropriate to grant leave for proceedings to continue so my application for judgement by default was declined in chambers on the grounds that the defendant company is now in liquidation. Do I need judgement for the insurance claim? Is it a requirement? if so can I appeal the chambers decision and on what grounds ie not disputed ? If needs appealing is it appealed in District court act?
The point of this section is that you should have sued the insurance company. So an appeal would not be useful
Customer
The Insurance company lawyer has yet to send his report advice on the acknowledged claim to Insurer . So appeal no point. Can I still sue the insurer if the advice of their lawyer is against me? What can I do now
If your claim is covered by their insurance then you can first make the claim and ask if they will pay without the need to sue. If they reject the claim then you would need to sue the insurer
Customer
Thanks the claim report has yet to be sent to the insurer by its paid Lawyer adviser .If they dont make an offer once sent to pay then you are saying I could pursue under the Law reform act 1936 in district court ?
Customer
On the basis of the evidence of validity is a fair and reasonable claim
You will need to go to the District Court if they do not settle your claim
Customer
Thanks again Chris you have answered my question my claim is in and I will ask if they will pay without the need to sue in due course and quote the Law reform act 1936 5 stars
Customer
When are you free to answer my other questions I am concerned that if I dont appeal the application for judgement by default decision not to grant judgement on the basis the defendant company is in liquidation then the undefended no judgement may be used by lawyers against the separate claim to defendants company liability insurance.
Customer
The decision was made in chambers, can it be appealed and on what grounds as it includes interest acruing at 5% from judgement.The judge didnt have all the facts before him in chambers.The liquidatores cant have it both ways not disputing the claim but asking for the proceedings not to continue.
Customer
I must go to town now will check email on return my mob###-##-####thanks Allan
The Law Reform Act is your only remedy to recover the insurance claim. Its difficult to assess the chances of appeal but from what you have described, I think it would be difficult
Customer
After 25 working days the liquidator did not provide a. statement of defence.Will the non granting of my separate application for judgement by default reason given company in liquidation have any bearing on a separate Liability claim acknowledged by the Insurer currently being assesed?. If not then if I Plaintiff in future had to do a statement of Claim in court to the defendant insurer then I could request interest under the Interest on money claims Act 2016 then. Given the circumstances and money was no object 1.how would you proceed? 2.And would you need to appeal the no judgement application or does it have no bearing on the Insurer claim?.
The result against the liquidator was inevitable and likely not worth appealing because of the fact of liquidation. If you claim against the insurer then like all claims you can claim interest. I think you need to get the case assessed by an experienced barrister however abd get advice on the next steps
Customer
The claim has been sent by liquidator as that was brokers requirement and acknowledged by the insurer with Claim number and the amended quantum amount from the origional claim has been assessed by my accountant and an independant Chartered accountant I got found it was fair and reasonable in his report sent to the insurer. I have all the statement of claim and evidence including affidavits as it is the same quantum and claim as to the company, I would simply have to change the defendants name and aquire a new civil number from CPU in Wellington.should I need to proceed to court in the future. I felt it none sensical for the liquidator to ask to cease proceedings when they have not disputed my claim and sent it to insurer. The point I think you are making is even with a judgement against the origional company I would still have to pursue the claim in court if the insurer chose to only pay some or none or only a small amount depending on their assessor. Is this correct? Do you agree?
The point is that you should have sued the insurer from the start knowing the company was in liquidation
Customer
Point noted and I did pursue the insurer through the company representative the liquidator to the Insurance Broker who presented the claim to the insurer whose lawyer is doing a report.The claim has been acknowledged Based on that report and discussions with the insurer only then will I know if a claim needs taking to civil. As there is a claim number then there is nothing stopping me from going down that avenue if indeed It comes to that. Do you agree?
If the insurer doesnt accept your claim then that is your next step
Customer
Do you agree it is pointless pursuing appeal of judgement as it has no bearing on my claim against insurer?
Yes, I do agree it is pointless
Customer
ok I agree in that light even if I got judgement against liquidator it wouldnt apply to the claim that is valid or matters re payment. Thank you
Customer
Just got back home to computer Is this the correct format cover page for Statement of Claim against INSURER ? Does the claim number from insurance need to be on cover page or just put in content page 1st pg after cover pg in Background to causes of action.
In the District Court
Auckland Registry
CIV 2020-004....
Under The District Courts Act 2016-District Court Rules 2014-form 32-Law Reform Act 1936 9Between Make It Ltd address etc
PlaintiffAnd Zed Insurance Ltd address etc
DefendantStatement Of ClaimPlaintiff Make It Ltd and Authorised agent of Plaintiff is director Allan..... address for serviceetc
Customer
It encompasses all three 1.the district court Act and 2.D C Rules 2014 form 32 format template and 3 my further right to claim/sue under the Law Reform Act 1936 9 Can a claim be made under both Acts? Do you specialise in civil court work ?
You can cite both although it isn’t necessary to cite the District Court Act and Rules.
Customer
awesome just wondered when I get time if I could email a copy for you to check is all good and act worded well if I require to do a Statement of Claim etc?.
Customer
Probably more important the Broker and Insurer have both acknowledged the claim with a number. Would you send a request asking if they required any other documentation or proof to further progress the claim no 64333.? Is acknowledged accepted? They are waiting for their legal assesor it most certainly meets the criteria for a statement of Claim in court if necessary.
Customer
I dont mean on my behalf I mean would you recommend I send a request if they require any further docs?
You should wait and see what the assessor says as your next step
Customer
ok all good havea great day
Customer
Really think decision bad one in chambers not letting valid claim go to judgement....................... Moving on the acknowledged claim was amended and insurer broker has asked assessor to liase with me but assessor hasnt emailed me for 8 weeks ,I think I will send a synopsis of the amended quantum they have my independant chartered accountants review of quantum, saying fair and reasonable, will include few proofs that assessor may not have copy of . Assesor has previously said to send anything relevant .I cc the broker.
Under the statute you can sue the insurance company if you are not getting a response
Customer
Insurer They await the assesor it wont hurt to send synopsis with more detail proof valid claim will it?The claim a solid claim
The more information may have, the better they can make a decisionn
Customer
Ok gonna reference very well thanks have a great rest of day
Customer
Hi Chris Aon has acknowledged the synopsis I sent which included company office records in support of my claim and the share transfer the lawyer has not, Should I request to all or just lawyer the time frame to Assess the claim.
Customer
The lawyer is the assessor previously assessor lawyer said he didnt have enough or any files from the company in liquidation I have since provided the agreement for services and other companies office proof of witholding transfer of shares after deed of removal,his ackowledgement of debt etc and illegal loan and money transfered out of the account all provided. I have also put through court a statement of claim to which no statement of defense was provided within the 25 working day requirement.
Yes, as for a time to get this assessed
Customer
First question do I need to send a copy of the statement of claim against company to the assessor??. Secondly In the Law Reform act 1936 9 (4) says except where provisions of subsection( 2) apply no such action shall be commenced except with leave of that court.Does that mean to make a claim I must seek leave of the court to make a claim against the insurer?
Yes you should, and yes you may need leave
Customer
would I send the statement of claim stating no statement of defense was provided within the 25 working day period. What about decision in chambers not allowing judgement by default.are both nessary for assessor of liability.
You can send all those documents
Customer
I can send statement of claim that no statement of defense was provided but does the application for judgement decision quoted here“The application for judgment by default is declined on the ground that the defendant company is now in liquidation” does that need sending is it negative to my assessment I dont want to send anything that doesnt assist.Is it relevant to assessor a positive for my claim.?
Customer
Will it affect my Make It Ltd company claim put through liquidator to the indemnity insurer of company with insurance. Affect it in a positive way.
Customer
Declined due to defendant company in liquidation but the insurer is not in liquidation
Treat it like an insurance claim
Customer
I your answer is still yes send Would I send a copy of Statement of Claim and 25 day notice of proceeding
Customer
copy of decision no judgement in liquidation?
Customer
should I also send copy of chambers no judgement by default in liquidation decision?
Yes, because that explains why you are going to the insurer
Customer
Statement of claim was processed after I got claim acknowledgement by insurer I thought a judgement would help seal it, it shows explains no statement of defense from liquidator at least ,I going to insurer as only avenue left or available to get indemnity for losses do you agree
It was a waste of time trying to sue the company in liquidation. You should have made an insurance claim
Customer
did it achieve anything? am I still stuck waiting for assessment do I wait till if I need to make an insurance claim after the assessment
You make a claim which is assessed
Customer
Im still awaiting the claim assessment that has been sent by Through liquidator as was company in liquidations insurer
Customer
That claim they are taking along time with but have given them recent synopsis and update.for that claim would you send the statement of claim to the curren claim or send SOC in my claim to insurer if the current assessment is against me
Customer
To refresh my statement of claim against company was sent to Liquidator and was forwarded to Insurance company who accepted acknowledged it.It is being assessed.for this claim should I send the statement of claim and judgement by default decision or wait in case I need to make a claim in court or Law reform act can I make a claim directly to insurer out of court?
You should be talking to the insurer. Sueing the company was pointless
Customer
For the current claim with the insurer being assessed should I send statement of claim etc to assessor or should I wait to see if successfull or not. I spoke to insurer who advised they cant speak to me untill assessor is completing assessment
You are repeating the questions to me. You can send those documents to the assessor
Customer
once completed if liability is acknowledged by assessor then insurer will negotiate or make offer
Customer
I thought you implied that SOC and declined Judgement would be usefull if I made a separate claim. If it was pointless suing company is it pointless sending to assessor now?
The company was i9n liquidation. You cannot sue them without leave of the court and therefore should be going to the assessor. We are going around in circles here. With an issue like this you really need to see a lawyer in person with the papers and get advice. I can only give general advice and without any detailed study of the claim and the papers it would be difficult to be precise in my answers
Customer
The claim witholding transfer of shares etc has not been disputed by liquidator so there is no way they can disprove it as its public companies office record other debt acknowledged. Its just liability to be acknowledged by Insurers assessor. Considering those facts would you still recommend sending the SOC and declined Judgement by default,as the judgement would not cause any issue to facts of my claim for losses incurred
Those documents are a matter of public record so you can send them.
Customer
I have sent the company office records. But court SOC docs and decision are they helpfull It could make the point that judgement would have been given against Insurer or company not in liquidation?
I repeat that you should review the papers with a lawyer in person. Issues like the tactics in negotiating claims are really beyond the scope of this site
Customer
We are still at assessing point , Do you think the SOC and judgement are helpfull and should be sent to assessor at this point.
Customer
We are not at the negotiating part yet
You can send them if you want
Customer
As the point has already been made the liquidator on behalf of company is not disputing the claim as they forwarded the claim to the Insurer who acknowledged it. A further non repsonse 25 day statement of claim is not something that is not already known to insurer or changes anything and there job is to assess how much liability there is in the insurance policy held at that time in relation to the claim entered. My synopsis covers all beginning to end. There is no need to send something that has already been established. That is advice of other Lawyer .
Customer
I have restricted it to facts and amounts calculations and proof thereof trying not to dble up on anything. If the assessment is only partially in my favour then that SOC may be of use in sec9 with seek leave possibly
I repeat that I can only give general advice and without seeing the details of the claim and the pleadings it is difficult for me to be more precise
Customer
Your advice is good, previously the assessor said possible relevant insured company files have not been provided by liquidator but I have since then provided the Agreement for Services with liability insurance, also Synopsis and Chartered accountants review of calculations finding of fair and reasonable losses incurred etc.There is nothing in the companys files that could change the facts.
Customer
They send the assessment report back to the insurer who would quibble with assessors report
Customer
I will wait for a response from lawyer assessor I have asked for an expected time for him to complete his assessment
The assessor should have whatever is relevant
Customer
Well I agree but I dont know if the company(now in liquidation) has kept files and what I have provided 1. agreement for services 2. Acknowledgement of debt document was rejected indemnity in exchange for signing transfer from insured company.3.Bank statements list of money transfered from bank accounts the unauthorised company was in control of at that time. All are what should be on the insured companys files and provided by them to me except for the bankstatements I obtained after the share transfer and my reappointment as director. The other companys office transfer of shares proof is public record material.So there is no other relevant matter in regard to my claim.
Customer
It is quite possible the company has not kept files relevant as in my civil case insured company vs me their claim a stalling tacktic they failed to disclose documents and bank statements requested in diclosure and a court order was ignored and their claim was struck out for failing to disclose and failing to attend, I defended that claim successfully. I had made a complaint to police and "Obtain by Deception over $1000" complaint was lodged with a claim no. I needed the witheld bankstatements and my directorship back for charges to be laid. So they probably didnt keep copies of them.
Customer
The insured company director died before I got access to the bankstatements for police complaint to be actioned.
You don’t need to try to convince me but the assessor
Customer
I have sent all that mentioned to assessorThe assessor will know those are relevant files that should have been held by insured company, liquidator provided little if any company file apart from my claim and various docs I provided
Customer
Then assessor said I could send directly to him
Customer
I have been ever since including recent synopsis companies office all the above and ccd to Aon broker and liquidator
Customer
Thanks again discussion does give me focus that I am on the right track the liquidator is not in my control but I have sent all relevant docs in my control etc for the assessor to assess liability of my claim
Customer
Who would you recommend in Auckland an insurance claim experienced Lawyer
Customer
I see mcelroys act for insurers I will inquire if they would advise the victim seeking indemnity insurance for lossess incurred
Customer
goodnite thank you again
Customer
Goodmorning Chris what would be really helpfull.Where would I find the time limit that the assessor has to assess the claim? also time limit to respond to my email before I could proceed to court.? Once Knowing the time limit,What then can I do to get a reply just make them aware I know time limit?
There are no relevant time limits except for the time to make a case under the Limitation Act of 6 years
Customer
No time limit for assessor to complete assessment? No time limit for an assessor to answer an email request for same?
There are no time limits prescribed by law
Customer
If there is no response there must be a mechanism to either or notification that if no reponse is recieved a claim may be entered against insurer for continued undue delay and non response..
If they don’t respond in a reasonable time you can sue
Customer
what is a resonable time were talking about the assessor a month or two ?one must give notice of intent to proceed against the insurer the lawyer is representing if they do not respond notice.? Are you familiar with that process
Customer
That must be covered in some statute
Customer
If the assessor who is instructing others not to respond including the AON broker is not reponding what step would you take yourself as a lawyer, to get an answer from the assessor lawyer remembering that the lawyer asked if I could send any relevant information to assessor which I have. Remember the claim had to go through the liquidator acting for the company to the broker but a claim no exists. There is frustration the liquidator has not provided much and asked the insurer and me for money to look for any possibly relevant files.
There is no statute with the relevant time limits. If they do not reply then you can sue them
Customer
would you notify the assessor that a reponse to my request for an approximate timeframe for the assessor to complete the assessment is required? Or would you ring the assessor and ask what the statis quo is?
Customer
Good news I have received finally a detailed response from the assessor lawyer who is wanting to deal directly with me not wanting anyone else to be ccd is also providing a copy of list of what he has recieved to date ,I asked for months ago. So success of response at least.
Customer
There are a couple of details like a date and I will provide will review and send
Customer
Merry Xmas Season Greetings The assessor lawyer has requested I dont send anything else to the broker or Liquidator just directly to him
Customer
You Dont think it an issue dealing with assessor directly at his request now theres a claim number? legally dont want them to later say it didnt go through right chanel Liquidator to Aon to them.Do you think thats all good to send and deal direct.
Customer
does yes mean go ahead and send direct? should I include or cc in Liquidator and aon and QBE or should I just deal with him only as he has asked?
Do as the lawyer has asked
Customer
Thankyou Chris , Rust never sleeps,All good hey its sunday put your feet up have a cold beer iced coffee whatever you prefer its the festive season.All the best and for a happy new year.
Ask for help, 24/7
Expert will respond in minutes
Save time & money
593 Verified lawyers, 10+ years of experience