Ressels v Southern Response Earthquake Services Limited

[2025] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA561/2024
 [2025] NZCA 116

BETWEEN	TREVOR STUART RESSELS Applicant
AND	SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED Respondent

Court:	Thomas and Palmer JJ
Counsel:	G D R Shand for Applicant T C Weston KC and K M Paterson for Respondent
Judgment: (On the papers)	14 April 2025 at 10 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

BThe applicant must pay costs for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

What happened?

1. Mr Trevor Ressels’ property suffered damage in the Canterbury earthquakes.  He accepted a cash settlement offer of $16,875.68 from his insurance company, now Southern Response Earthquake Services Ltd (Southern Response).  The claim was for items not covered by the Earthquake Commission, including paths and driveways.[1]  He brought legal proceedings to challenge the offer, primarily on the basis of misrepresentation and breach of the Fair Trading Act 1986, because it did not include allowances for preliminary and general costs, contingency, and professional design fees (the allowances).  Mr Ressels alleges there are between 7,500 and 9,500 policyholders in a similar position to him.  He sought leave to sue as a representative plaintiff on behalf of those with the same interest in the claim, under r 4.24 of the High Court Rules 2016 (the Rules). 

   [1]The Earthquake Commission does not repair damage to driveways, fences, patios, pavings and swimming pools.  Claims relating to damage to these items are known as “Out of Scope” claims that must instead be managed by insurers.

2. Southern Response acknowledges its liability for the preliminary and general work and contingency.  It is offering a compensation package to policyholders in a similar position to Mr Ressels.  It accepts that professional fees would be payable in cases where they were required.  It has waived a limitation defence in respect of contingency, professional fees and interest but raised a limitation defence regarding preliminary and general costs. 

Decision proposed to be appealed

1. On 23 November 2023, Associate Judge Lester in the High Court declined Mr Ressels’ application for leave to sue as a representative plaintiff.[2]  Mr Shand, for Mr Ressels, submitted that the allowances are an essential part of a true remedial costing.[3]  The Judge held, among other things, that this was not a tenable common issue as each policyholder’s entitlement in respect of those items turns on its own facts.[4]  Mr Ressels had not identified a common issue of fact or law for each member of the representative class.[5]  He is not a suitable representative plaintiff.[6]

   [2]Ressels v Southern Response Earthquake Services Ltd [2023] NZHC 3344 at [14].

   [3]At [33].

   [4]At [35].

   [5]At [50].

   [6]At [42] and [61].

2. Mr Ressels had previously sought leave to be joined as a further plaintiff and to sue as a representative in relation to a similar earlier proceeding by a Mr Sneesby about claims against Southern Response for the allowances.  Mr Sneesby’s application to sue in a representative capacity was declined because his claim was meritless.[7]  Mr Ressels’ application was declined in the High Court on 21 February 2023, on the basis that none of Mr Ressels’ legal rights would be determined by Mr Sneesby’s proceedings because the outcomes would turn on their respective particular facts.[8]

   [7]Sneesby v Southern Response Earthquake Services Ltd [2022] NZHC 262 at [45] and [50].

   [8]Sneesby v Southern Response Earthquake Services Ltd [2023] NZHC 246 at [34] and [37]–[39]. Applications for leave to appeal that judgment were declined by the High Court in Sneesby v Southern Response Earthquake Services Ltd [2023] NZHC 1316, and by this Court in Ressels v Southern Response Earthquake Services Ltd [2023] NZCA 614.

3. On 2 August 2024, the High Court declined Mr Ressels leave to appeal the High Court’s interlocutory decision here.[9]  Mr Ressels now applies to this Court for that leave.  Southern Response opposes the application.

Should leave to appeal be granted?

[9]Ressels v Southern Response Earthquake Services Ltd [2024] NZHC 2148 at [58].

1. Mr Ressels submits the common issues for a representative suit and limitation issues in group litigation are sufficiently particularised and are reasonably arguable errors of fact and law.  Otherwise, the rights of thousands of people are adversely affected, so the delay of an appeal is warranted and the issues are of general public importance.

2. There is a high threshold for leave to appeal an interlocutory decision.[10]  Here, Mr Ressels has not identified any reasonably arguable error of law or fact.  He did not particularise a common issue as required under r 4.24 of the Rules,[11] failed to explain the legal basis for the alleged obligation to pay the allowances irrespective of personal circumstances, and was not a suitable representative plaintiff.  There is no apparent error in the Judge’s conclusion that there were no issues sufficiently common to warrant leave being granted.  If there were an error, it would not be of such general or public importance to outweigh the lack of precedential value and the further delay involved in hearing an appeal.  Southern Response’s compensation package suggests the issue is of diminishing public importance.[12]  It is not in the interests of justice for leave to be granted.

Result

[10]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6(a)], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

[11]Ross v Southern Response Earthquake Services Ltd [2019] NZCA 431, (2019) 25 PRNZ 33 at [51], citing Cridge v Studorp Ltd [2017] NZCA 376, (2017) 23 PRNZ 582 at [11].

[12]Southern Response indicate that, as at 11 September 2024, 6,473 policyholders have received payment or have an offer awaiting acceptance under the compensation package for Out of Scope claims. 

1. The application for leave to appeal is declined.

2. The applicant must pay costs for a standard application on a band A basis together with usual disbursements.

Solicitors:
Grant Shand Barristers & Solicitors, Auckland for Applicant
Buddle Findlay, Christchurch for Respondent