Parties

EARTHQUAKE COMMISSION
(HEQCH)

OF 
(?Customer?)

SETTLEMENT AGREEMENT

Date:
PARTIES
1

EARTHQUAKE COMMISSION, a Crown entity continued in existence under the
Earthquake Commission Act 1993 (EQC)

2

[NAME OF CUSTOMER] of [PLACE OF RESIDENCE/BUSINESS] (the Customer)
(together, the Parties)
BACKGROUND

A

The Parties entered into an Agreement to Mediate in relation to a dispute
regarding aspects of the EQC claims listed in the Agreement to Mediate. The
date of the Agreement to Mediate and the property in question are identified
in the Schedule (the Property).

B

The parties have agreed to resolve those aspects of the Dispute (the Dispute)
as identified in the Schedule on the basis set out below.
BY THIS AGREEMENT the Parties agree as follows:

1

Interpretation
In this agreement, unless the context requires otherwise:
1.1

the singular includes the plural and the plural includes the singular;

1.2

a reference to a gender includes the other gender;

1.3

a reference to a person includes any individual, company, corporation,
firm, partnership, joint venture, association, organisation or trust, in each
case whether or not having separate legal personality;

1.4

a reference to a person includes (where applicable) its successors,
personal representatives and permitted assigns;

1.5

a reference to this agreement or another instrument includes any
variation or replacement of any of them;

1.6

“Dispute” means the issues and matters recorded in clause 3 of the
Agreement to Mediate between the Parties.

 2

2

3

4

5

6

What EQC agrees to do
In consideration of the Customer signing this agreement, EQC will meet the
obligations set out in the Schedule (the Settlement).
What the Customer agrees to do
In consideration of EQC signing this agreement, the Customer agrees:
3.1

to discontinue any proceedings filed, and not to commence any
proceedings in New Zealand or elsewhere which in any way arise out of
or relate to the Dispute, against EQC or any of its related persons,
servants, employees or agents or against any other person and, in the
case of any proceedings filed, to serve a copy of the notice of
discontinuance of the proceeding on the solicitors for EQC;

3.2

not to make any complaint in relation to the Dispute to any professional,
governmental or other body about the conduct of EQC or any of its
related persons, servants, employees or agents or against any other
person and to withdraw any complaint already made;

3.3

not to make any public comment critical of EQC or any of its related
persons, servants, employees or agents or against any other person in
respect of any matters which in any way arise out of or relate to the
Dispute; and

3.4

to take the action referred to in the Schedule (if any).

No admission of liability
A Party does not admit fault or liability by negotiating or entering into this
agreement.
Full and Final Settlement
This agreement, which comes into effect when it is signed, is in full and final
settlement of the Dispute, and of all claims which the Customer has or may
have in respect of any matters which in any way arise out of or relate to the
Dispute, against EQC or any of its related persons, servants, employees or
agents.
Except to the extent required to enforce this agreement, no Party may
commence any proceeding against another Party, whether in court or
arbitration, in New Zealand or elsewhere, which in any way arises out of, relates
to, or is connected with the Dispute.

 3

7

8

9

10

11

12

This agreement may be pleaded as a bar and a complete and absolute
defence to any proceedings existing at the date of this agreement and any
subsequent proceedings commenced in breach of this agreement, and this
agreement may be adduced in evidence for that purpose.
Legal Costs and Disbursements
Unless otherwise agreed, each Party will bear its own legal costs and
disbursements in relation to the negotiations leading to, and the preparation
and execution of, this agreement.
Further Assurances
In entering into and performing its obligations under this agreement, each Party
represents and agrees that it has the full power and authority necessary to
validly enter into the agreement in the capacities detailed and perform all of
its respective obligations under this agreement.
Each Party will take all steps, execute all documents and do everything
reasonably required by it to give effect to the provisions of this agreement.
Variations
No variation of this agreement will be effective unless in writing and signed by
the Parties.
Confidentiality
Subject to clauses 9.4 to 9.7 of the Mediation Protocol, which remain in force,
these clauses 12 to 14 replace the confidentiality obligations set out in the
Mediation Protocol:
12.1

the Parties agree they may disclose that a settlement has been reached,
but any matters set out in:
(a)

this agreement;

(b)

the mediation proceedings; and

(c)

any communications and correspondence (in writing or otherwise)
leading up to this agreement’s execution,

must be kept confidential and used solely for the purposes of performing and
enforcing the obligations contained in and/or contemplated by this
agreement; and

 4

12.2

no Party to this agreement will make any public announcement or
distribute any publicity about this agreement or the terms contained in it.

13

Each Party to this agreement agrees to use all reasonable endeavours to
prevent any person associated, connected or related to that Party from
publicly announcing or distributing any publicity about this agreement or the
terms contained in it, in breach of clause 12.

14

The Parties acknowledge that the obligation of confidentiality contained in this
agreement will remain in full force and effect notwithstanding the
discontinuance of any proceedings and the performance of all obligations
contained in and/or contemplated by this agreement.
[Drafting Note: Notwithstanding the text in clauses 12 to 14 above, the nature
and scope of any confidentiality obligations to continue following the
execution of the settlement agreement may, if the Customer so wishes, be a
matter for negotiation between the Parties, to be determined as part of any
overall settlement]

15

Special provisions relating to payment of any settlement sum
Where there is a mortgage registered against the certificate of title to the
property to which the Dispute relates, the following provisions apply:
15.1

the Parties recognise that the mortgagee may be entitled under the
terms of the mortgage to payment of the settlement sum (as specified in
the Schedule to this agreement) in respect of the property to which the
Dispute relates;

15.2

the Customer warrants that it has truthfully disclosed to EQC the identity
of the mortgagee;

15.3

unless payment by EQC of the settlement sum under this agreement is to
be made to the trust account of the Customer’s solicitors, the account
into which the Customer directs that the EQC payment is to be made
must be an account that the Customer holds in the Customer’s own
name with the mortgagee;

15.4

the Customer agrees that, immediately after this agreement is executed,
it will notify its mortgagee of the following matters:
(a)

that EQC is about to make payment in respect of those aspects of
the Dispute that are resolved in this agreement;

 5

16

17

18

19

(b)

the amount of that payment (as specified in the Schedule);

(c)

the date by which that payment is due to be made (as specified in
the Schedule); and

(d)

the account into which that payment will be made (as specified in
the Schedule).

Where EQC pays the settlement sum into the account directed by the
Customer and the mortgagee (or any other person) later claims that it was
entitled to receive the settlement sum rather than the Customer, the Customer
agrees that it will indemnify EQC for any loss it sustains in respect of the
mortgagee’s (or other person’s) claim.
Entire Agreement
This agreement represents the entire agreement between the Parties relating to
its subject matter. This agreement replaces all earlier negotiations,
representations, warranties, understandings and agreements, whether oral or
written, between the Parties relating to such subject matter.
Each Party acknowledges that it has not relied on any earlier negotiations,
representations, warranties, understandings and agreements, whether oral or
written, in entering into this agreement, save insofar as such are reflected in the
terms of this agreement.
Advice
Each of the Parties to this agreement, in each of its various capacities,
acknowledges that, before signing this agreement, it has had the opportunity
to obtain independent legal advice as to the meaning and effect of this
agreement.

20

Execution and Delivery
This agreement may be executed in any number of counterparts which taken
together will be deemed to constitute the same document.

21

Governing Law
This agreement is governed by the laws of New Zealand and the courts of New
Zealand have exclusive jurisdiction in respect of its subject matter.

 SCHEDULE

Date of Agreement to Mediate
[Insert date of Agreement to Mediate]
Details of Property in Dispute
[Insert address/legal description of property]
Resolved Aspects of Dispute
[Insert the parts of the dispute that are settled]

Terms of Settlement
Pursuant to the terms of this agreement dated [date], EQC agrees to take
the following actions:
Payment by EQC:
Within [7 days] of the date of this agreement, EQC will pay the Customer
the sum of $[ ] by paying that sum into the trust account of the
Customer’s solicitors, [name of firm of solicitors] or any other account that
the Customer directs.
Other obligations:
[Insert any other agreed EQC or Customer obligations]

 EXECUTION
Signed by [name of Customer]

[Name of Customer], Customer

Signed for and on behalf of the
Earthquake Commission by

________________________________
Authorised Signatory/Attorney

 ADDITIONAL EXECUTION
Signed for and on behalf of [any
Additional Party]

________________________________
Authorised Signatory/Attorney