Xu & Anor v IAG goes to the Supreme Court

In an update to a case covered previously in In Brief, leave for appeal to the Supreme Court was granted for Xu & Anor v IAG on 2 August 2018.  The approved question for appeal is: “Was the Court of Appeal correct to dismiss the applicants’ appeal against the judgment of Nation J?”

The Court of Appeal (Xu & Anor v IAG New Zealand Ltd [2018] NZCA 149) had upheld the decision of the High Court, reaffirming the non-assignability of replacement benefits in insurance policies.  This decision maintained the orthodox position that replacement benefits under an insurance policy are personal to the original insured, and are therefore not capable of being assigned.

Of particular interest is how the Supreme Court will approach the Court of Appeal decision of Bryant v Primary Industries Insurance Co Limited.  This case held that only the right to indemnity costs was capable of being assigned.  The Court of Appeal declined to overturn the longstanding decision, but it will be interesting to see which way the Supreme Court leans, given it is not in any way beholden to Court of Appeal precedent.  

For a summary of the Court of Appeal decision and background on the saga see our update from our In Brief: Special Report 18th May 2018.