Ross v Southern Response Earthquake Services Limited

[2021] NZHC 142

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000361

[2021] NZHC 142

BETWEEN

BRENDAN MILES ROSS and COLLEEN ANNE ROSS

Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Conference:

11 February 2021

Appearances:

P G Skelton QC, K M Quinn and C B Pearce for Plaintiffs

T C Weston QC, K M Paterson and E D Peers for Defendant J Miles QC and D Nilsson for LPF Group Limited

K W Clay for Claims Resolution Service Ltd

Judgment:

11 February 2021

JUDGMENT OF OSBORNE J

(on intervention application) (result)

This judgment was delivered by me on 11 February 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ROSS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2021] NZHC 142 [11 February 2021]

[1]                 This hearing was urgently convened to determine two interlocutory applications for leave to intervene in this proceeding or a part of it. The urgency arose from the fact that the defendant has an opposed interlocutory application to be heard on 15 February 2021.

The litigation

[2]                 The plaintiffs, Brendan and Colleen Ross, by this proceeding are bringing a representative claim against Southern Response Earthquake Services Ltd (Southern Response). The claim relates to the settlement agreement that Mr and Mrs Ross entered into within Southern Response in relation to their insurance claim for damage to their house caused by the Canterbury earthquakes. They say that Southern Response provided them with incomplete information about the cost of remedying earthquake damage to their home. As a result they settled on a less favourable basis than they otherwise would have.

[3]                 Mr and Mrs Ross have been granted leave to bring a representative proceeding. Through Claims Funding Australia Pty Ltd and the Claims Funding Australia Discretionary Trust (collectively “CFA”), the Rosses have a litigation funder’s support for the proceeding.

[4]                 Initially, leave was granted by this Court on an opt in basis.1 The Court of Appeal allowed the Rosses’ appeal, substituting an opt out procedure for the opt in procedure.2 The Supreme Court subsequently dismissed Southern Response’s appeal against the opt out procedure.3

[5]                 The judgment of the Supreme Court was delivered on 17 November 2020. Upon the request of counsel for both parties, this Court then made directions for the plaintiffs’ applications for notification orders and for a common fund order. In the meantime, Southern Response also filed an application for directions in relation to its communications with individual potential class members (“the communication application”).

1      Ross v Southern Response Earthquake Services Ltd [2018] NZHC 3288.

2      Ross v Southern Response Earthquake Services Ltd [2019] NZCA 431, (2019) 25 PRNZ 33.

3      Southern Response Earthquake Services Ltd v Ross [2020] NZSC 126.

[6]Hearing dates were subsequently allocated as follows:

(a)communication application — 15 February 2021 (one day allocated);

(b)notification order application — 22 March 2021 (two days allocated).

[7]The common fund order application has yet to be allocated a hearing date.

[8]                 The defendant’s and plaintiffs’ documents for the 15 February 2021 hearing have nearly all been filed, with the plaintiffs’ submissions due today.

LPF’s application to intervene

[9]                 On 1 February 2021, an interlocutory application was filed by LPF Group Ltd (LPF), which is described in its supporting affidavit as New Zealand’s largest litigation funder, established in 2009. At this point, LPF does not have a funding arrangement with any person with a claim of the nature of the Rosses’ claim.

[10]LPF applies for leave to intervene in this proceeding as follows:

“to be heard in respect of the defendant’s interlocutory application for directions dated 14 December 2020, including by appearing at the hearing of that application currently scheduled for 15 February 2021.”

[11]              LPF sought a further direction that a case management conference be allocated for the purpose of making directions in relation to other representative plaintiffs. (Those directions would include the date by which any such claimant would have to file its statement of claim).

[12]              LPF’s application was supported by an affidavit of its executive director, Jonathan Woodhams.

[13]              On 5 February 2021, counsel for LPF filed a memorandum which is in the nature of a synopsis of submissions on leave to intervene. At today’s hearing, Mr Miles QC spoke to and elaborated upon those submissions.

[14]              On 5 February 2021, Mr Skelton QC, on behalf of the Rosses, filed a memorandum in response. Given the urgency of the situation, I have dispensed with the need for a notice of opposition — the memorandum succinctly set out the Rosses’ points of opposition. Mr Skelton has today spoken to and developed upon that document.

Result on LPF application

[15]I dismiss LPF’s application for leave to intervene in this proceeding.

[16]              I also dismiss LPF’s secondary application for the allocation of a case management conference.

[17]              Costs must follow the event. I direct as between LPF Group Ltd and the plaintiffs that LPF Group Ltd pay to the plaintiffs the costs and disbursements of the application (without a certificate for junior counsel). In the event of disagreement as to quantum, the matter will be determined on the papers, with the plaintiffs’ submissions to be filed first, to be followed by LPF’s submissions within ten working days thereafter (four page limit in each case).

[18]              I reserve costs as between the defendant and LPF Group Ltd. My tentative view, having regard to Southern Response’s substantially neutral position, is that there should be no order for costs as between those parties.

[19]              In relation to a request made by LPF for access to court documents (dated 9 February 2021), I refuse the request. Mr Miles recognised that, if the Court were to dismiss LPF’s application for leave to intervene, the access request would be appropriately refused.

CRS’s application to intervene

[20]              Yesterday, 10 February 2021, an application was filed by Claims Resolution Service Ltd (CRS) for leave to intervene in this proceeding. I directed that the application also be called at this hearing notwithstanding the lack of opportunity for the plaintiffs to file opposition documents.

[21]              It transpired, upon discussion at the start of the hearing, that Mr Clay recognised that there was no need for CRS to pursue its application. As explained by Mr Clay, the primary concern of CRS relates to its ability to communicate freely with those claimants with whom CRS has service agreements. Insofar as matters of communication will be before the Court at the 15 February 2021 hearing, any orders to be made will be in relation only to the parties to this proceeding.

[22]The application of CRS has accordingly been withdrawn.

[23]              Given that the parties to this proceeding were not required to formally respond to the application and that the issue was resolved properly at the outset of a hearing predominantly focussed on the application of LPF, there will be no order as to the costs and disbursements of CRS’s application.

Leave reserved

[24]              This judgment, by reason of the urgency, has necessarily been limited to stating a result. As between LPF and the parties, I reserve leave to any of those to request written reasons. If requested, the delivery of the reasons would necessarily take time due to scheduled commitments.

Osborne J

Solicitors:

GCA Lawyers, Christchurch for Plaintiff

Counsel: P G Skelton QC, Auckland

Buddle Findlay, Christchurch for Defendant
Counsel: T C Weston QC, Christchurch

Lee Salmon Long, Auckland for LPF Group

Counsel: J Miles QC, Auckland
Canterbury Legal, Christchurch for Claims Resolution Service

Counsel: K W Clay, Barrister, Christchurch