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Pfisterer v Claims Resolution Service Limited

Pfisterer v Claims Resolution Service Limited

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Case Copied 20 October 2023 69 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA355/2021
[2023] NZCA 511

BETWEEN	LUCIA RENATE PFISTERER Appellant
AND	CLAIMS RESOLUTION SERVICE LIMITED First Respondent GRANT SHAND BARRISTERS AND SOLICITORS Second Respondent

Hearing:	7 September 2022
Court:	Cooper P and Katz J
Counsel:	M S Smith and J A Tocher for Appellant A R B Barker KC and G P Davis for First Respondent A B Darroch and B A Mathers for Second Respondent
Judgment:	20 October 2023 at 3:00 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the first respondent its reasonable solicitor-client costs in this Court, together with any reasonable disbursements incurred. The first respondent is entitled to default interest under its contract with the appellant, calculated on the basis set out at [60] of [2021] NZHC 1943.
CThe appellant must pay the second respondent costs on a band A basis with usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Table of Contents

Para No

Introduction

Factual background

The appeal

First issue: was the CRS contract an unconscionable bargain?

Legal principles
High Court decision
Submissions on appeal
Discussion

Second issue: did CRS breach the CRS contract, and if so did those breaches give rise to a right of cancellation?

Did CRS breach a duty to Mrs Pfisterer under cl 1(e) of the CRS contract in respect of CRS’s instruction of Shand Solicitors and Mr Betts?
Did CRS breach a duty to Mrs Pfisterer under cl 1(g) of the CRS contract by failing to seek informed instructions from Mrs Pfisterer to commence litigation?

Third issue: did CRS engage in misleading and deceptive conduct?

The alleged misrepresentation
High Court decision
Submissions on appeal
Discussion

Fourth issue: did CRS owe a fiduciary duty to Mrs Pfisterer, and if so did it breach its fiduciary obligations to Mrs Pfisterer?

Legal principles
High Court decision
Submissions on appeal
Discussion

Fifth issue: did Shand Solicitors breach fiduciary duties it owed to Mrs Pfisterer?

Legal principles
Did Shand Solicitors owe, and breach, a fiduciary duty to obtain informed consent from Mrs Pfisterer to act for her, due to any conflict of interest arising from Shand Solicitors’ pre-existing relationship with CRS?
Did Shand Solicitors owe, and breach, a fiduciary duty to provide advice to Mrs Pfisterer on the CRS contract and funding arrangements?
Did Shand Solicitors owe, and breach, a fiduciary duty to provide advice to Mrs Pfisterer on the filing of the proceedings?

Sixth issue: did the Judge err in not awarding any relief in respect of Shand Solicitors’ proven breaches of fiduciary duty?

High Court decision
Claim for damages
Claim for forfeiture of remuneration
Claim for a declaration

Seventh issue: should the costs award in favour of Shand Solicitors have been discounted?

Costs

Result

Introduction

Lucia Pfisterer’s home in Christchurch was significantly damaged in the Canterbury earthquakes of 2010–2011. In September 2013 she settled her claim against the Earthquake Commission | Toka Tū Ake…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZCA 511
Decision Date: 20 October 2023 at 3:00 pm

CaseChat Overview and Summary

- Parties: Lucia Renata Pfisterer (appellant) vs Claims Resolution Service Limited (first respondent) and Grant Shand Barristers and Solicitors (second respondent)
- Nature of the dispute: The appeal was against the decision of the High Court in favour of Claims Resolution Service Limited and Grant Shand Barristers and Solicitors. The appeal raised various issues including whether the contract between the appellant and Claims Resolution Service Limited was unconscionable, whether there were breaches of contract or misleading and deceptive conduct, and whether there were breaches of fiduciary duty by either party.
- Court: The Court of Appeal of New Zealand
- Legal issues: The court was required to decide on whether the contract was unconscionable, whether there were breaches of contract or misleading and deceptive conduct, whether there were breaches of fiduciary duty, and whether the costs award should be discounted.

The court found that the contract was not unconscionable as the appellant was not under a qualifying disadvantage and there was no evidence of unconscionability. The court also found that there were no breaches of contract or misleading and deceptive conduct by Claims Resolution Service Limited. The court found that Claims Resolution Service Limited did not owe or breach any fiduciary duty to the appellant. Regarding the claims against Grant Shand Barristers and Solicitors, the court found that there were breaches of fiduciary duty but they were not causative of any loss. Therefore, no relief was awarded in respect of those breaches. The court also found that the costs award should not be discounted.

- Outcome: The appeal was dismissed, and the appellant was ordered to pay the first respondent's reasonable solicitor-client costs in this Court, together with any reasonable disbursements incurred. The first respondent was also entitled to default interest under its contract with the appellant. The appellant was also ordered to pay the second respondent costs on a band A basis with usual disbursements.

Orders