Ressels v Southern Response Earthquake Services Ltd - [2023] NZCA 614

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA338/2023
[2023] NZCA 614

BETWEEN	TREVOR STUART RESSELS Applicant
AND	SOUTHERN RESPONSE EARTHQUAKE SERVICES LTD First Respondent JOHN ARTHUR SNEESBY Second Respondent

Court:	French and Katz JJ
Counsel:	G D R Shand for Applicant T C Weston KC for First Respondent
Judgment: (On the papers)	4 December 2023 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThere is no award of costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Ressels seeks leave to appeal a decision of Associate Judge Lester in which the Judge declined Mr Ressels’ applications involving joinder as a plaintiff in a representative capacity to existing proceedings.[1]
[1]Sneesby v Southern Response Earthquake Services Ltd [2023] NZHC 246 [Ressels joinder judgment].
For reasons we later explain, leave is required under s 56(5) of the Senior Courts Act 2016. Mr Ressels first sought leave to appeal from the High Court.[2] This was refused, prompting Mr Ressels to seek leave from this Court.[3]
[2]Sneesby v Southern Response Earthquake Services Ltd [2023] NZHC 1316 [Ressels leave judgment]. Leave was sought from the High Court pursuant to s 56(3) Senior Courts Act 2016.
[3]Ressels leave judgment, above n 2, at [60].
The first respondent opposes leave being granted.

Background

The proceeding to which Mr Ressels wants to be joined was filed in July 2021 by a Mr Sneesby against the respondent Southern Response Earthquake Services Ltd.
Mr Sneesby’s proceeding concerns the cost of certain repairs to a residential property that suffered earthquake damage in the Christchurch earthquakes. He lodged a claim in respect of items not covered by Toka Tū Ake | the Earthquake Commission (out of scope items) with his private insurer AMI Insurance Ltd, now Southern Response.
In mid-2014, Southern Response assessed the cost of repairing the out of scope items as amounting to $29,588.70. Mr Sneesby accepted that figure in settlement of his claim.
Seven years later, he issued the proceedings at the heart of this case. The statement of claim alleges that Southern Response misled Mr Sneesby by providing a costs assessment that it knew did not allow for such matters as contingencies and general charges. With contingency and general charges included, the figure should, it is alleged, have been $39,382.56, resulting in a shortfall of some $9,793.86.
Not long after filing his proceeding, Mr Sneesby applied for leave to bring the claim as a representative plaintiff, on behalf of himself and numerous other homeowners insured with Southern Response alleged to have been similarly short paid. Their numbers were estimated at up to 9,500.
The application to sue in a representative capacity was declined by Associate Judge Lester.[4] It was declined on the ground that Mr Sneesby’s own claim was meritless.[5] In 2017, he had settled other earthquake-related litigation with Southern Response and had entered into what was described as a “robust and comprehensive full and final settlement…

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 614
Decision Date: 4 December 2023 at 3.30 pm

CaseChat Overview and Summary

Trevor Stuart Ressels applied for leave to appeal a decision of Associate Judge Lester, which declined his applications to join existing proceedings as a plaintiff in a representative capacity. The proceedings in question were brought by Mr Sneesby against Southern Response Earthquake Services Ltd, concerning the cost of repairs to a residential property that suffered damage in the Christchurch earthquakes. Mr Ressels sought to be joined as a second plaintiff and to sue in a representative capacity on behalf of other homeowners with similar claims. The Associate Judge declined both applications, holding that the joinder application did not satisfy the requirements of r 4.56 of the High Court Rules 2016. Mr Ressels sought leave to appeal from both the High Court and the Court of Appeal, which were both refused. The Court of Appeal held that the application for leave to appeal was governed by a high threshold, requiring the applicant to persuade the Court that the proposed appeal raises issues of sufficient importance to warrant the delay and cost of the appeal process. The Court found that none of the proposed grounds of appeal raised an arguable issue of law or fact and declined the application for leave to appeal. There is no award of costs.

Orders