Claims Resolution Service Ltd v Smith
[2020] NZCA 664
•18 December 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA583/2019 [2020] NZCA 664 |
| BETWEEN | CLAIMS RESOLUTION SERVICE LIMITED |
| AND | KARLIE MARGARET SMITH |
| CA582/2019 | ||
| BETWEEN | GRANT SHAND BARRISTERS AND SOLICITORS | |
| AND | KARLIE MARGARET SMITH | |
| Hearing: | 15 October 2020 |
Court: | Kós P, Cooper and Clifford JJ |
Counsel: | A R B Barker QC and G P Davis for Claims Resolution Service Ltd |
Judgment: | 18 December 2020 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for leave to adduce further evidence is granted.
BThe appeals are dismissed.
CThe cross-appeals are allowed to the extent specified at [46].
DThe appellants are to pay the respondent one set of costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
Ms Smith, the respondent, owns a home damaged in the Canterbury earthquake sequence of 2010–2011. Claims Resolution Service Ltd (CRS), the appellant in CA583/2019, provided services to Ms Smith to assist her to pursue her private insurer for the settlement of her claim for the damage caused by the earthquakes. A part of those services was the engagement of Grant Shand Barristers and Solicitors (Shand Solicitors), the appellant in CA582/2019, to assist in that process.
In her High Court proceedings Ms Smith claims that CRS and Shand Solicitors each separately owed her, and breached, fiduciary duties and that her contract with CRS was an unconscionable bargain. By way of relief Ms Smith claims damages and a declaration that the terms of the CRS contracts requiring her to pay commission, third party costs and expenses, including Shand Solicitors’ legal fees, are void and unenforceable.
A large number of other Christchurch homeowners contracted with CRS for those services on similar terms and were represented by Shand Solicitors pursuant to those contracts. Gendall J granted Ms Smith leave pursuant to r 4.24 of the High Court Rules 2016 to bring her claims against CRS and Shand Solicitors on a representative basis: that is, not only on her own behalf but on behalf of all persons who, like her, engaged CRS and were represented by Shand Solicitors to help resolve their claims.[1] In a related decision the Judge set certain of the terms of that representative proceeding.[2]
[1]Smith v Claims Resolution Services Ltd [2019] NZHC 127 [Leave judgment].
[2]Smith v Claims Resolution Service Ltd [2019] NZHC 1013 [Conditions judgment].
This is an appeal by CRS and Shand Solicitors against those decisions.[3] At the same time Ms Smith cross-appeals two aspects of the High Court’s decisions: one ruling inadmissible for the purpose of her application for representative status evidence from other CRS/Shand Solicitors’ clients, the other declining to require the advertising of her representative proceeding on CRS’ Facebook page.[4]
Background
[3]The High Court granted leave to appeal: Smith v Claims Resolution Service Ltd [2019] NZHC 2738.
[4]Leave judgment, above n 1, at [14]; and Conditions judgment, above n 2, at [17]–[19].
Bryan Staples is the founder and sole director of CRS. In an affidavit in support of CRS’ opposition to Ms Smith’s application to bring a representative proceeding, he described the background to his decision to establish the CRS business in the following way:
I also saw how stressful the claims process was for people. No one was prepared for an event like this and most homeowners were completely out of their depth in dealing with EQC and their insurer. Most people had simply trusted that EQC assessors knew exactly what to do, and would accurately scope the damage and instigate a repair strategy that would meet their obligations. When it transpired that this was not the case, people were shocked and scared about what would happen to their homes, which for many were their main or only real asset. I observed so many people who simply did not know how to deal with the situations they were in, and had insufficient resources to engage the right people to help them.
Ms Smith was such a person. Following the earthquakes, she made claims to EQC. Following ECQ’s payment of statutory compensation, Ms Smith’s claim was passed to her private insurer, Tower Insurance Ltd. Tower said her house could be repaired. It provided her with uncosted scopes of work in early 2014. Ms Smith did not know whether those scopes of work were correct, or what it would cost to do those repairs. In an affidavit she swore in support of her application she explains:
I wanted my house back the way it was before the earthquakes. I was worried that I did not know if what Tower was saying was right.
At that time my son was being difficult to manage. My youngest boy … needs to have consistency in his life. My Mum lives in the same street. These were some of the reasons why I wanted my house fixed. I had no spare money and my income was low. I was worried that I could not afford to fix everything Tower said was wrong with my house.
Encouraged by a friend who knew Mr Staples personally, she engaged a company associated with Mr Shand and CRS, Earthquake Services Ltd (ESL), to prepare a report, known as an independent damage assessment, which would enable her to check what Tower were saying. In late July 2014 Tower offered Ms Smith a nett amount of $79,332.60 to settle her insurance claim on the basis of Tower’s estimate of total repair costs of $208,342.39, less her $100 policy excess and EQC’s contribution. Shortly afterwards, Ms Smith received ESL’s assessment. ESL estimated Ms Smith’s total repair costs to be $495,374.41. As Ms Smith comments in her affidavit:
I did not know what to do as this report was very different to what Tower had been telling me. The costs were over double what Tower had said. I was feeling desperate. I did not know who could help and I did not have any money to spend on a lawyer. I trusted Julie so when Julie suggested again that I get Earthquake Services to help me with my claim I went along with this suggestion.
Following a meeting with Mr Staples at Earthquake Services’ offices, on 4 September 2014 Ms Smith signed a standard form agreement with CRS. By that agreement Ms Smith engaged CRS to act on her behalf “as set out in [the] agreement and in relation to [Ms Smith’s] claim in respect of damage and loss to [her] property”. Simply put CRS would, in consultation with Ms Smith and by instructing other people including independent assessors, quantity surveyors, lawyers or service agents, help Ms Smith to progress and resolve her claim for the repair of her home with her insurer Tower. Ms Smith was to provide all relevant information to CRS, and generally cooperate with it to advance her claim. Ms Smith was to pay all costs and disbursements CRS incurred, including third party services for quantity surveyors and legal fees, and eight per cent commission on the final settlement value.
CRS offered its clients a number of payment options. Ms Smith elected the “Partnership” program: she was to pay an initial fee on signing of $2,500 plus GST, and some costs as they were incurred (such as court filing fees). But most costs, including legal fees and CRS’ commission, would be paid on settlement.
The service agreement schedule annexed to that agreement indicated more than 98 per cent of all claims settled after legal proceedings had been commenced and court mandated settlement negotiations had taken place. Less than two per cent of claims went to trial.
As matters transpired:
(a)Shand Solicitors filed High Court proceedings for Ms Smith against Tower in September 2016, claiming $545,755.43 from Tower on the basis of estimated repair costs of $674,999.90, together with $50,000 general damages and $25,000 temporary accommodation costs.
(b)In May 2018, at mediation, Tower offered $380,000 to settle ($305,000 for repairs, $25,000 for accommodation costs and $50,000 for fees). Ms Smith accepted that offer.
(c)In June 2018 CRS invoiced Ms Smith a total of $79,494.25 comprising:
(i)commission of eight per cent on the $330,000 settlement offer plus GST, being $30,360; and
(ii)fees of $49,134.25 including Shand Solicitors’ legal fees (excluding disbursements) of $28,989.99.
(d)Ms Smith pointed out that she had previously reached an understanding with Mr Staples that CRS’ commission would be based on the amount by which the final settlement value exceed Tower’s offer. As a result, the commission was reduced to $23,061.40, eight per cent of the $250,667.40 increase.
In her statement of claim against CRS and Shand Solicitors Ms Smith describes the arrangements she, and those on whose behalf she claims, made with CRS by saying they all:
i.own a home that was damaged in the earthquakes;
ii. contracted with CRS for claims resolution funding and advocacy services in respect of insurance claims against the Earthquake Commission and/or an insurer arising from the earthquakes;
iii. obtained what were described as independent damage assessments from ESL, and based on those assessments costings for the remediation of their homes by Stephen Betts;
iv. were represented by Shand Solicitors, in circumstances where Shand Solicitors were engaged by CRS to act for them and to commence and prosecute a civil proceeding for them;
v. settled their insurance claims for significantly less than the sum that CRS and Shand Solicitors had identified and advocated to be the full and true value of their insurance claims.
Mr Staples and Mr Shand, Ms Smith says, established a joint venture to provide those services. That joint venture involved each of them personally and:
(a)in Mr Staples’ case, what Ms Smith describes as “the Staples closely held companies” including CRS, ESL, a company called 8D Ltd and their directors and shareholders; and
(b)in the case of Mr Shand, Shand Solicitors and that firm’s lawyers, premises and other facilities.
The terms of that joint venture arrangement, and in particular the relationships between Mr Staples, CRS and purportedly independent entities (such as ESL); between CRS and the purportedly independent Shand Solicitors; and the various ways in which Mr Staples and Mr Shand would benefit from those arrangements, were — Ms Smith alleges — never disclosed to her.
Ms Smith says further that the circumstances in which she, and those on whose behalf she brings this proceeding, contracted with CRS — in particular their vulnerability, the significant inducement of CRS’s various representations, including its “no win/no fee” marketing, and the nature of the services to be provided — meant CRS owed them fiduciary duties, as did Shand Solicitors. The failure to disclose the full nature of the joint venture arrangements between Mr Staples, Mr Shand and their various related entities, the conflicts of interest those arrangements involved and the gaining of undisclosed benefits, involved breaches of fiduciary duties and obligations by both CRS and Shand Solicitors, and rendered the contracts between Ms Smith (and those whom she represents) and CRS unconscionable, and therefore unenforceable, bargains.
In broad terms, CRS and Shand Solicitors accept the objective facts relating to the CRS contracts and their involvement in them as pleaded by Ms Smith. CRS denies the existence of a fiduciary relationship with Ms Smith and any breach of contractual or other legal obligations to her, including of a fiduciary nature if such duties were found to have existed. Shand Solicitors accepts it owed Ms Smith fiduciary duties but denies any breach of those duties or of any contractual or other legal obligation it owed. CRS denies that the CRS contracts represent unconscionable bargains. Moreover, both say they did what they said they would: negotiate a settlement of Ms Smith’s insurance claim on significantly better terms than first offered by her insurer.
CRS counterclaims against Ms Smith for the unpaid invoiced amounts of $49,134.25 and $23,061.40, together with interest at the contractual rate of two per cent per month, being $47.47 per day until payment.
Ms Smith, and a number of other CRS clients, are currently defending separate debt collection proceedings in the District Court commenced by CRS for the recovery of monies, particularly legal fees and commission, said to be owed pursuant to the CRS contracts. A number of those persons provided affidavits in support of Ms Smith’s application for representative status, confirming their intention to opt in as members of the class. Others, who contracted with CRS in the circumstances pleaded by Ms Smith, have paid such amounts already. It is anticipated that such persons would also opt into the representative proceeding authorised by the High Court. The parties advised us that there are some 178 potential members of that class in total.
The High Court recently heard CRS’ debt collection claim against one such CRS claimant, Ms Pfisterer, and her counter-claim against CRS and Shand Solicitors based on an alleged breach of fiduciary duty and the consequences thereof, much as pleaded by Ms Smith in her representative proceeding.[5] Judgment was reserved recently. Other claims in the District Court have been stayed pending the determination of Ms Smith’s claim.[6]
[5]Claims Resolution Service Ltd v Pfisterer HC Christchurch CIV-2016-009-1851.
[6]Claims Resolution Service Ltd v Risdon DC Christchurch CIV‑2018‑009‑2950; and Staples Group Ltd v Beeton DC Christchurch CIV-2019-009-692. See Staples Group Ltd v Beeton [2019] NZDC 24383 at [7] and [25].
As acknowledged by Ms Smith, her proceeding will in effect act as a representative defence to debt collection proceedings as well as the basis for a representative claim for the return of monies already paid by CRS clients pursuant to the claimed unconscionable CRS contracts.
The High Court decision
In granting Ms Smith leave to proceed on a representative basis, the Judge reasoned as follows:[7]
[35] The present proceeding concerns an alleged pattern of behaviour by the defendants and a common thread. This requires evidence of the experience of a large group of claimants. As I see the position, it would be difficult for an individual claimant to adduce such evidence, as they would struggle to show it was relevant to their particular claims. Therefore, there is a benefit to each complainant in having their claims heard together. There is a risk that, if there was a joint venture operating improperly with possible actionable consequences, having the claims brought separately might mask its existence.
[7]Leave judgment, above n 1.
The Judge noted that a similar situation had arisen in Southern Response Earthquake Services Ltdv Southern Response Unresolved Claims Group.[8] There leave was given to bring a representative action against an insurer, alleging an improper strategy on the insurer’s part. In that case, it was accepted that the strategy could only be proved by the experience of multiple claimants, a factor supporting that grant of leave. Gendall J concluded:
[37] I consider that the commonality in the way that (a) Group members entered into a contractual relationship with CRS and Shand Solicitors; and (b) the subsequent way the defendants are alleged to have operated in that relationship, mean that the factors considered to establish these two causes of action will be largely similar. An affirmative answer can be expected to benefit all Group members. As the Supreme Court has noted, I must focus on what unites the Group members, not what divides them.
(Footnote omitted.)
[8]At [36], referring to Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group [2017] NZCA 489, [2018] 2 NZLR 312.
The Judge was also influenced by the savings of costs and case management efficiency of having the claim being brought as a representative proceeding.[9] In that, the Judge saw a grant of leave as consistent with the modern liberal approach to r 4.24, and consistent with the overall objective of the High Court Rules.[10]
[9]At [39].
[10]At [40].
In his subsequent judgment the Judge confirmed case management arrangements for the proceedings, including the publication of an approved form of notice which would commence the four-month “opt in” period involved.[11] The Judge ordered a case management conference at the conclusion of that period to discuss:[12]
(a) The proper scope for discovery;
(b) Security for costs;
(c) Whether there are issues that could be determined by a separate question;
(d)If, when and how judicial settlement conferences might best be utilised;
(e) The future progression of [the] proceeding.
Appeal
[11]Conditions judgment, above n 2.
[12]At [35].
In its notice of appeal, and as now relevant, CRS focused on what it said were the High Court’s errors in determining that the proposed potential claimants were identified with sufficient certainty and particularity and had claims with sufficient commonality of issues such that the objectives of a representative proceeding would be met. It pointed to the lack of particularity in the pleading of the detail of both breach and loss saying that, given the specific and individual nature of those matters for any claimant, the representative action would serve little purpose. Shand Solicitors based its appeal on similar grounds, asserting the lack of an appropriate common issue or issues, the limited significance to individual claims of any common issue that might be identified and the novelty of aspects of Ms Smith’s claim.
Taken overall the appellants recognised there may be common issues pleaded, in particular as to fiduciary duty and failure to disclose. But, they say, because issues such as reliance and loss are only examinable on an individual basis, establishing the basis for findings in favour of Ms Smith and others on those matters would in reality have little benefit. That is, the representative action would not advance matters to the extent required to justify exposing CRS and Shand Solicitors to the cost and expense it would inevitably impose upon them.
The reserved High Court proceeding involving Ms Pfisterer would provide a convenient and efficient way for the courts to consider the essential elements of Ms Smith’s proceeding. When the outcome of that case was known, the need for and future of any possible representative proceeding could be properly assessed.
Ms Smith supported the High Court’s reasoning. In doing so she emphasised what she said was the very obvious commonality of interest she shared with those on whose behalf she had been authorised to bring the representative action. She also emphasised the cost savings and efficiencies, for the claimants, of the representative proceeding. There were issues, she acknowledged, that would need to be resolved on an individual basis. But that did not detract from the suitability of the procedure in terms of the overall objects of the High Court Rules and, more specifically, of the principles relating to representative actions that had been developed by New Zealand courts in recent years. Put simply, she said, unless a representative action was available, neither she nor those who would be represented would — by dint of their lack of financial resources — be able to bring any claim against CRS or Shand Solicitors, or to mount an effective defence to the debt proceedings they currently faced.
Analysis
Rule 4.24 empowers the High Court to allow a plaintiff to bring representative proceedings on behalf of others who have the same interest in the subject matter of the proceeding. The rule provides:
4.24 Persons having same interest
One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding—
(a) with the consent of the other persons who have the same interest; or
(b) as directed by the court on an application made by a party or intending party to the proceeding.
Ms Smith does not have consent at this point of those on whose behalf she intends to act. She therefore requires leave of the Court under r 4.24(b) to proceed with this as a representative action.
This Court has summarised the principles governing the application of r 4.24 in this way.[13]
[13]Cridge v Studorp Ltd [2017] NZCA 376, (2017) 23 PRNZ 582 at [11] (footnotes omitted).
(a) The rule should be applied to serve the interests of expedition and judicial economy, a key underlying reason for its existence being efficiency. A single determination of issues that are common to members of a class of claimants reduces costs, eliminates duplication of effort and avoids the risk of inconsistent findings.
(b) Access to justice is also an important consideration. Representative actions make affordable otherwise unaffordable claims that would be beyond the means of any individual claimant. Further, they deter potential wrongdoers by disabusing them of the assumption that minor but widespread harm will not result in litigation.
(c) Under the rule, the test is whether the parties to be represented have the same interest in the proceeding as the named parties.
(d) The words “same interest” extend to a significant common interest in the resolution of any question of law or fact arising in the proceeding.
(e) A representative order can be made notwithstanding that it relates only to some of the issues in the claim. It is not necessary that the common question make a complete resolution of the case, or even liability, possible.
(f) It must be for the benefit of the other members of the class that the plaintiff is able to sue in a representative capacity.
(g) The court should take a liberal and flexible approach in determining whether there is a common interest.
(h) The requisite commonality of interest is not a high threshold and the court should be wary of looking for impediments to the representative action rather than being facilitative of it.
(i) A representative action should not be allowed in circumstances that would deprive a defendant of a defence it could have relied on in a separate proceeding against one or more members of the class, or conversely allow a member of the class to succeed where they would not have succeeded had they brought an individual claim.
In our view, the decision of the High Court granting Ms Smith leave to bring this proceeding on a representative basis is an orthodox application of those principles. At the heart of those principles are three essential factors:
(a)a commonality of interest in the subject matter, as to both fact and law, of the proceeding;
(b)access to justice; and
(c)litigation efficiency and judicial economy.
This proceeding can be seen as being based, first, on the shared experience of Ms Smith and those whom she will represent in the initial impact of the damage to their homes caused by the Canterbury earthquake sequence, and the subsequent strains and stresses of their efforts to achieve the relatively — one might have thought — simple outcome of getting their homes repaired or replaced. Simple, because there was no issue as to the liability for EQC and private insurers and because the properties involved — in many cases modest residential dwellings — would not be expected to present the complexities involved in the repair or replacement of more substantial commercial properties. As matters transpired, the sheer scale of the destruction caused by the Canterbury earthquake sequence, together with the added complication of the implications of land suitability in many affected areas, made the processing of insurance claims and settlements more difficult for all concerned. But we think it is fair to say those difficulties bore particularly heavily on homeowners in the position of Ms Smith and those whom she would represent. There is also the commonality of the degree of associated emotional stress and strain occasioned by the fact that these properties were homes.
Secondly Ms Smith, and those whom she represents, contracted with CRS and received services from Shand Solicitors and related entities on broadly similar if not virtually identical terms and conditions. The shared position and experience of Ms Smith and those she will represent is also the basis for their shared vulnerability when contracting with CRS and dealing with those service providers.
In those circumstances, the existence of a common interest in issues of law and fact is, in our view, virtually self‑evident.
The appellants fairly emphasise the elements of a claim such as this that will need to be resolved on an individual basis. There may be differences in the terms of and the way in which CRS, Mr Staples and related entities, and Mr Shand and Shand Solicitors, discharged their legal obligations to members of the class. There may also, we accept, be issues such as reliance and loss which could require analysis by reference to individual class member’s particular positions. But as is clear, a representative action does not become inappropriate simply because it will not resolve all of the issues for all of the members of the class.[14] Rather, the question is whether there is a sufficient commonality of interests in law and fact and whether that commonality of interest is accompanied by the presence of other considerations making a representative proceeding appropriate, such as those identified in above at [31].
[14]At [11(e)].
In our view, the additional factors of particular relevance here are the issues of access to justice and, relatedly, efficiency in the legal process. As Ms Smith — in our view fairly — submitted, the findings in what is envisaged to be the first stage of Ms Smith’s claim (as to whether the appellants owed and breached fiduciary duties and as to what relief is appropriate) could be expected to resolve not only Ms Smith’s claim, but to guide the resolution of other claims which are materially similar to hers. As to efficiencies, to take but one example in terms of court and hearing costs, the benefits of a single process of discovery are manifest.
It is for those reasons that we have concluded that the Judge was correct to grant Ms Smith leave to bring her proceeding on a representative basis. We dismiss the appellants’ challenges to that decision.
In that eventuality, the appellants asked us to vary the High Court’s decision by requiring the initial notification of the representative action to include specification of the way in which the claim would be funded and to require the provision to the appellants of security for unpaid fees — that is, the amounts that CRS says are presently due and owing.
The Judge declined to order disclosure of funding at this stage. We agree with him. The issue cannot be meaningfully dealt with until it is known how many people have joined the representative action and to what extent, if any, external funding has been secured and its terms. The matter can be dealt with at a subsequent case management stage.
As to the request for security for unpaid fees, the Judge considered it would be “unprincipled and arbitrary” to make the order requested by the appellants.[15] Before us, the appellants again pressed the need for fees to be paid into a solicitors’ trust account pending the outcome of the litigation and voiced concern that lengthy litigation may drain or dissipate their former clients’ assets. However, as we observed at the hearing, that logic cuts both ways. Some potential participants in the action have already made payments to the appellants (usually in the form of deductions from their settlement figure). The appellants did not propose paying security to them. It would seem peculiarly one-sided to order the other participants to pay without requiring like security from the appellants. In any case, we are satisfied that it would be inappropriate to require payment here of the underlying debts at issue. To what extent payment of security for the cost of litigation may be appropriate is, of course, a different matter which can be determined by the High Court once the “opt in” procedure has closed.
[15]Conditions judgment, above n 2, at [34].
We therefore also dismiss those aspects of the appeals brought by CRS and Shand Solicitors and now turn to the questions raised by Ms Smith.
As to the first, that of the admissibility of certain affidavit evidence filed by Ms Smith in reply but challenged by the appellants on the basis that there was no entitlement to such a reply, we need not reach a decision. We say that because we have determined this appeal without recourse to that evidence. What we do observe is that the relevance and admissibility of that evidence in the substantive, representative, claim appears self-evident. Of course, that will be a matter for the trial Judge should it be raised.
Finally, there is the High Court ruling declining Ms Smith’s application for the advertising of the representative proceeding on CRS’ Facebook page.[16] The Judge had before him evidence of screenshots from the page in question which Ms Smith complained portrayed the proceeding in a partisan and unfair manner. We were also supplied with a helpful further affidavit of a Mr Hood updating the Court with more recent posts on the page.
[16]Although in the Conditions judgment, above n 2, at [17]–[18] the Judge discussed publication on the Shand Solicitors website, he clarified in a subsequent minute of 20 May 2019 that he intended the same logic to apply to Ms Smith’s request for publication on the CRS website and its other internet platforms: Smith v Claims Resolution Service Ltd HC Christchurch CIV-2018-409-643, 20 May 2019 (Minute of Gendall J) at [8].
The Judge considered that it was unlikely that disgruntled clients would be checking the websites or Facebook pages of the businesses in question.[17] While we acknowledge the natural logic of that analysis, in our view the evidence offered by Mr Hood’s updating affidavit shows the CRS Facebook page is being used to advance its interest in this litigation. For instance, one post warns that “Class Actions may not be all they are promised to be” and warns of the potential for “incurring enormous costs”, while advertising a commission-free service as “a better way to take your fight to [insurers] than [joining] a class action”. We accept the submission for the respondent that CRS’ posts clearly show that it believes it is able to reach potential plaintiffs through the page. We also accept that it is appropriate to use the Facebook page to publish the Court-approved opt-in notice to provide a summary of the action alongside the understandably more partisan commentary offered by CRS itself.
[17]Conditions judgment, above n 2, at [18].
We therefore grant leave to admit the affidavit of Mr Hood and allow the cross‑appeals to the extent of granting the application that the approved opt‑in notice be published on CRS’ Facebook page. We leave the High Court to determine the details of that publication — for instance, when the notice should be published and for how long.
Result
The application for leave to adduce further evidence is granted.
The appeals are dismissed.
The cross-appeals are allowed to the extent specified at [46].
Costs
As the successful party, Ms Smith is entitled to costs. Although Mr Smith advised us that he had agreed to act pro bono on the appeal, we accept that is not an absolute bar to costs being awarded and to him rendering an invoice for those costs.[18] The appellants are to pay the respondent one set of costs for a standard appeal on a band A basis and usual disbursements.
[18]See Marino v Chief Executive of the Department of Corrections [2017] NZCA 2 at [3]; and Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [360].
Solicitors:
Canterbury Legal, Christchurch for Claims Resolution Service Ltd
Darroch Forrest, Wellington for Grant Shand Barristers and Solicitors
GCA Lawyers, Christchurch for Respondent
8
6
0