Ross v Southern Response Earthquake Services Ltd
[2021] NZHC 2453
•20 September 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000361
[2021] NZHC 2453
BETWEEN BRENDAN MILES ROSS and COLLEEN ANNE ROSS
Plaintiffs
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED
Defendant
Hearing: 13 April 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 S M Grieve and G D R Shand for B & L Vickers and others (Intervening)
Judgment:
20 September 2021
JUDGMENT OF OSBORNE J
(Defendant’s communications application)
This judgment was delivered by me on 20 September 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ROSS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2021] NZHC 2453 [20 September 2021]
TABLE OF CONTENTS
Introduction [1]
Previous findings in relation to defendant’s communications [3] The substantive litigation and interlocutory applications and appeals [8] Directions now sought by Southern Response [14]
The Rosses’ opposition [18]
Matters previously determined [19]
Communications during the opt out period [22] Content of Southern Response’s communications — the standard to be observed [25] Content of Southern Response’s communications — discussion [31] Appendices 1–5 [31]
Appendix 1: Webpage content [34]
CP1 “Background to the Package” [36]
CP2 “The Pre-October 2014 Payment Package is based on the Dodds case” [38] CP3 “The Pre-October 2014 Payment Package is based on the Dodds case” [39] CP4 “Relationship between pre-October 2014 Payment Package and the
Ross class action” [44]
CP5 “Your options if you cash-settled with Southern Response prior to
1 October 2014” [54]
CP6 “Recommendation to seek independent legal advice” [57]
CP7 “What is the Independent Oversight Committee (IOC)?” [61] CP8 “EXPLANATIONS ABOUT THE DODDS CASE: Background” [62] CP9 “EXPLANATION ABOUT THE DODDS CASE: Dodds Court Decision” [64] CP10 “INDEPENDENT OVERSIGHT COMMITTEE” [69]
Appendix 2: Registration form [70]
CP11 First draft email [71]
CP12 Second draft email [74]
Appendix 3: Marketing material [75]
Appendix 4: Direct communication with customers (Phase 2 or where a
customer requests written information) [76]
CP13 “Relationship between Pre-October 2014 Payment Package and the
Ross Class Action” [76]
CP13 “Your options if you cash-settled with Southern Response prior to
1 October 2014” [77]
CP15 “Recommendation to seek independent legal advice” [78]
Appendix 5: Letterbox drop to Canterbury households (Phase 3 — if required) [80]
CP16 “Am I eligible for a payment?” [80]
Content of Southern Response’s communications — approved forms [82]
Timing of Southern Response’s communications [84]
Leave reserved [91]
Orders [92]
Communications [92]
Initial Communications [92]
Further Communications [92]
Liberty to negotiate and/or settle claims [92]
Timing [92]
Leave reserved [92]
Costs and disbursements [92]
Introduction
[1] In this proceeding Brendan and Colleen Ross1 bring (by leave under r 4.24 High Court Rules 2016) a representative claim against Southern Response Earthquake Services Ltd (Southern Response).2
[2] An issue arose as to communications which Southern Response proposed to initiate with individual potential members of the class represented by the Rosses. I heard Southern Response’s application for directions which would permit it and its legal advisors to communicate directly with individual potential class members in relation to the settlement of their claims.
Previous findings in relation to defendant’s communications
[3] I first issued a Result Judgment by which the directions sought by Southern Response were refused.3 I have today issued my Reasons Judgment.4
[4] By the Result Judgment I refused the directions sought by Southern Response.5 The (limited) findings which led to the Result Judgment may be summarised as follows:6
(a)the Court’s supervisory powers in relation to representative proceedings attach to communications between a defendant (and its legal representatives) and members of the class as they do to a plaintiff (and their legal representatives) and members of the class;
(b)in relation to both situations, the Court’s powers extend to all aspects of any communication including form, content and timing; and
1 Mr and Mrs Ross are trustees of two family trusts which each owned an undivided half share of their residential property. Mr and Mrs Ross sue in their capacity as trustees.
2 Mr and Mrs Ross were insured with AMI Insurance Ltd. AMI could not meet its obligations to policyholders after the second major earthquake in Canterbury on 22 February 2011. AMI’s name was changed to Southern Response Earthquake Services Ltd, now a Crown-owned company. It deals with claims by AMI customers for damage resulting from the Canterbury earthquakes.
3 Ross v Southern Response Earthquake Services Ltd [2021] NZHC 253 [Result Judgment].
4 Ross v Southern Response Earthquake Services Ltd [2021] NZHC 2451 [Reasons Judgment].
5 Result Judgment, above n 3, at [18].
6 At [15].
(c)in appropriate cases, the Court may require a party to seek from the Court prior approval in relation to its proposed communication/s.
I directed that, in the event Southern Response wished to communicate with the class members, it was to file either an amended or fresh notice of application for approval of communications in draft form.7
[5] In the Reasons Judgment, I reviewed overseas case law and legislative requirements and issues raised by the Rosses as to ethical considerations.8
[6] I found that overseas practice upheld Southern Response’s freedom of communication but subject, extraordinarily, to intervention by the Court. I stated:
[170] Practice in those overseas jurisdictions recognises the general freedom of a defendant to communicate settlement offers directly to claimants (other than the representative plaintiff), but with the Court prepared to intervene where the defendant’s conduct is misleading, coercive or similarly unacceptable. The jurisdiction to intervene is exercised protectively, but otherwise recognising the defendant’s freedom of action. Circumstances in particular cases may mean that a prudent defendant will provide its settlement offer to the solicitor acting for the representative plaintiff in advance, to enable that party to seek directions from the Court in the event there is an unacceptable aspect. Extra-ordinarily, the Court may prohibit a defendant’s communications other than in a form and manner approved in advance by the Court.
[7] I then explained the appropriateness of supervisory intervention in Southern Response’s communications in this case:
[172] The authorities to which I have referred … indicate that at least in some overseas jurisdiction the Court’s supervisory jurisdiction will in appropriate cases be exercised in relation to the content of communications between the defendant in a class action and class members who have not retained the plaintiff’s lawyers to represent them. The most frequent example of such supervision either being exercised or considered relates to situations where the defendant’s conduct is misleading, coercive or similarly unacceptable. The categories of conduct which may attract the Court’s intervention, however, are not closed.
[173] Here, the proposed communication of the defendant (and/or its lawyers) with unrepresented members of the class comes at the very time the plaintiffs are awaiting the hearing of their application for notification orders. The outcome of that will be to determine the information which is to be
7 At [19].
8 Reasons Judgment, above n 4.
provided by direct notice and by newspaper advertisement to class members, setting out details as to the proceeding, class membership, the right to stay in or opt out of the representative proceeding and the consequences of each of those options. It happens that the plaintiffs are able to seek notification orders only now, almost three years after commencing this proceeding, because of the interlocutory steps and appeals which have occurred in the meantime.
[174] It also happens that in that intervening period there has become available to Southern Response, through the Dodds litigation, legal outcomes which have led Southern Response to formulate the Package which it wishes to put to policyholders including class members.9 The form of directions sought by Southern Response did not identify the content of any communication which Southern Response would (at least initially) have with class members. In its evidence, Mr Hurren identified the principles which he said would underpin the Package but he did not provide evidence as to the particular content of any communication by which the Package would be promoted to class members.
[175] The parties are now in the situation in which notices sought by the plaintiffs will be going to class members around the same time as any Southern Response communications to class members about its Package (unless constrained by the Court in its supervisory role). There is potential for confusion unless the Southern Response communication is independently scrutinised. The two sets of communications need to be capable of being read by class members with a clear understanding of the contents not only in the sense that the communication standing alone is clear but also in the sense that each set of communications, when read around the same time as the other, does not thereby give rise to potential confusion or misunderstanding.
[176] It is this unusual feature of the timing of this application that called for the Court’s supervisory intervention on this occasion and is why the directions sought by the defendant were refused.
The substantive litigation and interlocutory applications and appeals
[8] The Rosses’ representative claim against Southern Response relates to a settlement agreement Mr and Mrs Ross entered into with Southern Response in relation to their insurance claim for damage to their house caused in the Canterbury Earthquake Sequence. They say 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.
[9] Initially, leave to pursue a representative claim was granted by this Court on an opt in basis.10 In Ross v Southern Response Earthquake Services Ltd (Ross CA) the
9 Dodds v Southern Response Earthquake Services Ltd [2019] NZHC 2016, [2019] 3 NZLR 826 [Dodds HC]; Southern Response Earthquake Services Ltd v Dodds [2020] NZCA 395, [2020] 3 NZLR 383 [Dodds CA].
10 Ross v Southern Response Earthquake Services Ltd [2018] NZHC 3288 [Ross HC].
Court of Appeal allowed the Rosses’ appeal, substituting an opt out procedure for the opt in procedure.11 The Supreme Court subsequently dismissed Southern Response’s appeal against the opt out procedure.12
[10] 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 Rosses’ application for notification orders (that is settling the form and details relating to an opt out notice).
[11] In the meantime, Southern Response filed an urgent application for directions in relation to its communications with individual potential class members (the communications application). The initial context of the communications application was that the Rosses had made their application for notification orders which was to be heard in April 2021. The Rosses’ application for directions invoked the Court’s powers of supervision in relation to the conduct of representative proceedings. In the Supreme Court judgment, Ellen France J (giving the Court’s reasons) recorded that courts “have exercised control, to varying degrees, over communication with group members”.13
[12] Here, Southern Response, as defendant, wishes itself and/or through its lawyers to have direct contact with potential members of the class represented by the Rosses so as to seek to settle the claims of such persons in the light of the outcome of the High Court and Court of Appeal judgments in a separate (non-representative) proceeding in which Southern Response was sued by Mr and Mrs Dodds.14
[13] The Rosses disputed the entitlement of Southern Response to have such communications and negotiations. When correspondence between the solicitors did not resolve that dispute, Southern Response elected to make the communications
11 Ross v Southern Response Earthquake Services Ltd [2019] NZCA 431, (2019) 25 PRNZ 33 [Ross CA].
12 Southern Response Earthquake Services Ltd v Ross [Ross SC] [2020] NZSC 126.
13 At [70], citing King v AG Australia Holdings Ltd [2002] FCA 872, (2002) 121 FCR 480 at [28]; Courtney v Medtel Pty Ltd [2002] FCA 957, (2002) 122 FCR 168, at [52] [Courtney 2]; and Damian Grave, Ken Adams and Jason Betts (eds) Class Actions in Australia (2nd ed, Thompson Reuters, Pyrmont (NSW), 2012) at 568–570.
14 Dodds HC, above n 9; Dodds CA, above n 9.
application. This was declined with leave reserved to Southern Response to pursue its application afresh or amended.15
Directions now sought by Southern Response
[14]Southern Response, by its amended application, seeks directions that:
(a)Southern Response, including its employees, officers and directors, be at liberty to make the following communications to individual potential class members in this proceeding in respect of a settlement Package (the Package);
(i)an identified webpage, with identified content;
(ii)an application form which policyholders can complete and submit in order for their eligibility to participate in the Package to be assessed, together with proposed email responses/follow- ups from Southern Response, with the proposed content identified; and
(iii)radio and print media advertising about the Package, with proposed content identified
(together the Initial Communications)
(b)Southern Response be at liberty to make the following Further Communications to individual potential class members consequent upon the Initial Communications:
(i)to mail out a letter directly to policyholders (including potential class members) for whom Southern Response holds contact details, with a proposed text identified;
15 Result Judgment, above n 3.
(ii)to mail drop to Canterbury households that Southern Response may consider depending on the extent of the response to the Initial Communications, with a proposed text identified; and
(iii)to have such further oral or written communication arising in the course of individual settlement discussions with individual policyholders (including potential class members) as may be necessary to progress such discussions, including emails, telephone contact and in-person discussions;
(together the Further Communications)
(c)that following the Initial Communications and, as appropriate, the Further Communications, Southern Response be at liberty to negotiate and/or settle claims with individual potential class members in this proceeding;
(d)Southern Response be at liberty to communicate, engage, negotiate, and/or settle claims with individual potential class members in this proceeding through any legal representative engaged by individual class members (whether or not that representative is GCA Lawyers); and
(e)reserving leave to apply at short notice to alter, amend or add to the above communications as may be required by changing circumstances.
[15] Southern Response, by its amended application, further requested that the opt out period to be specified by the Court, pursuant to the Rosses’ notification application, should be sufficient to permit an opportunity for individual potential class members to consider fairly their options in respect of the Package and the proceeding generally, and to take such advice as is necessary.
[16] The documents referred to in Southern Response’s application were attached as appendices to the application as follows:
(a)Appendix 1: Webpage content;
(b)Appendix 2: Registration form;
(c)Appendix 3: Marketing material;
(d)Appendix 4: Direct communication with customers (Phase 2); and
(e)Appendix 5: Letterbox drop content (Phase 3 — if required).
[17] As each of these documents will be discussed in this judgment, by reference to (marked up) amendments proposed by the Rosses, the originals are set out as Appendices 1–5 followed by the final forms (Appendices 6–10) as are approved.
The Rosses’ opposition
[18] The Rosses opposed the making of any of the directions sought by Southern Response. They asserted (in summary):
(a)Southern Response should negotiate any settlement with the Rosses as the duly appointed representatives of the class;
(b)the Court should not permit Southern Response to communicate directly with individual class members or to negotiate with or enter into settlements with class members, other than through the Court- appointed representatives;
(c)Southern Response’s proposal is likely to create inequity between different groups of class members;
(d)Southern Response’s proposal, if put into effect, would amount to an abuse of the opt out process;
(e)alternatively, should the Court approve Southern Response’s proposed communications or any amended version thereof, such communication should not occur during the opt out period; and
(f)alternatively, if Southern Response is authorised to communicate directly with class members, the Court should require amendments to Southern Response’s five appendices in accordance with marked up appendices attached to the notice of opposition (reproduced as Appendices 1–5 hereof).
Matters previously determined
[19] The Court determined a number of issues relating to Southern Response’s proposed communications in the Result Judgment, delivered on 23 February 2021. Three further applications, including that dealt with in this judgment, were then heard in April 2021. Counsel accordingly made their submissions on Southern Response’s amended application without the benefit of the Reasons Judgment which is also being issued today.
[20] The findings in the combination of the Result Judgment and the Reasons Judgment mean that the first four grounds of the Rosses’ opposition (as I have summarised them at [18(a)–(d)] above), do not remain for further consideration. By the earlier judgments, I upheld the Rosses’ contentions that the Court’s supervisory powers in relation to representative proceedings attach to communications between a defendant and members of the class. I further held that, at the point the proceeding has reached with the Court about to consider the Rosses’ application in relation to an opt out notice, the Court’s approval of any communications between Southern Response and the class members with a view to settlement was required. That said, I rejected the further contentions of the Rosses as to Southern Response being precluded from communicating at all with class members and as to any communication being precluded unless the Court has first approved Southern Response’s (settlement) Package.
[21] Accordingly, the focus of this judgment must be upon whether the Court should intervene to preclude Southern Response from communicating with class members
during the opt out period and whether the Court should require any amendment to Southern Response’s proposed forms, contents and methods of communication.
Communications during the opt out period
[22] The Rosses’ application for notification orders (that is settling the form and details relating to an opt out notice) was heard immediately before the hearing of this (Southern Response’s communications) application.
[23] In the hearing of the notification application, counsel presented their submissions on whether Southern Response should be permitted to communicate its Package at all before the opt out period in this proceeding has expired.
[24] In the Notification Judgment, which is also issued today, I summarise the submissions made as to the timing of Southern Response’s communications.16 I determined that the Court will not intervene to require Southern Response to defer communicating its Package until after the expiry of the opt out period.
Content of Southern Response’s communications — the standard to be observed
[25] Southern Response’s communications are not to be misleading, coercive or similarly unacceptable.17
[26] I respectfully adopt as helpful (but non-exhaustive) considerations the “standards” identified by Sackville J in Courtney v Medtel Pty Ltd (Courtney 2):18
…
• the documentation accurately explains the consequences of accepting and not accepting the offer;
• the offer allows a period for acceptance that is sufficient to the Group Member with a genuine opportunity to obtain legal advice, should the Group Member wish to do so; and
• the documentation makes it clear that the Group Member is entitled to seek and might benefit from independent legal advice.
16 Ross v Southern Response Earthquake Services Ltd [2021] NZHC 2452 [Notification Judgment] at [127]–[131].
17 Reasons Judgment, above n 4, at [172]. See also Notification Judgment above 16, at [33]–[34].
18 Courtney 2, above n 13, at [64].
[27] In the particular circumstances of this case, there is a further consideration which the Court should take into account in exercising its supervisory jurisdiction over Southern Response’s communications. It arises from the fact that Southern Response will be communicating the availability of the Package around the same time as the class members notice is issued. The principal purpose of the class members notice is to enable members of the class to make an informed decision as to opting out of or staying in the proceeding.19 The purpose of the class members notice is thus to inform, not to recruit.20 The Court (in the Notification Judgment), in giving its approval to the form of class members notice to be issued in this proceeding, has applied the approach, settled in other jurisdictions, that the class members notice should not contain wooing or advocating content.21
[28] Accordingly, the scope Southern Response has to promote to claimants a settlement package must be reasonably tempered in these circumstances. This ensures there is a balance between the information provided in the class members notice and that which class members will receive around the same time in relation to Southern Response’s Package.
[29] The Rosses submitted it would be inappropriate to allow the Package to be communicated at the same time as the class members notice is issued. I rejected that submission. In the Notification Judgment, I concluded:22
… If class members have information, when making their decisions, both as to the nature of this proceeding (through the class members notice) and also the availability of the Package (through Southern Response’s communication of that), it is likely that numbers of class members will opt out of the representative proceeding. But, with supervised communications in both contexts, that will not be the result of a wooing or advocating content. Rather it will result from class members, through the coincidental timing, making their informed choice between alternative pathways to settlement.
19 Notification Judgment, above n 16, at [22]–[23].
20 Notification Judgment, above n 16, at [26], citing Smith v Canadian Tire Acceptance Ltd [1995] 22 OR (3d) 433 (On Gen Div) at [38].
21 Notification Judgment, above n 16, at [126]–[130].
22 Notification Judgment, above n 16, at [131].
[30] The Court has a responsibility on the particular facts of this case (which I recognise are exceptional) to ensure balance in Southern Response’s proposed communications.
Content of Southern Response’s communications — discussion
Appendices 1–5
[31] In the Rosses’ notice of opposition, counsel helpfully provided marked up versions of the appendices, in which the basis of objection to content was noted and amendments proposed. The marked-up documents are the most convenient for reference and are accordingly attached to this judgment as Appendices 1–5.
[32] The primary position of the Rosses was that Southern Response should not be permitted to engage in any such communications during the opt out period. However, Appendices 1–5 identify in summary form the Rosses’ submissions as to appropriate contents should Southern Response be permitted to communicate with class members.
[33]In the discussion which follows, the references are therefore to the Appendices.
Appendix 1: Webpage content
[34] The first communication of which Southern Response seeks approval (Appendix 1) would be on a webpage within Southern Response’s main website, accessible via the main website ( and directly via
their proposed amendments to the Appendices, the Rosses identify particular comments (on the right side of the page) with the notation “CP1”.23 Counsel, in their submissions, used the same references and I will do so too. Where the Rosses’ Appendix proposed an amendment without a particular comment, I will discuss it in sequence with the specific comments.
23 The “CP” adopted in the marked up notes simply represents the initials of one of the Rosses’ legal representatives.
CP1 “Background to the Package”
[36] The Rosses object to a statement that Southern Response believed the costs which Southern Response failed to pay to policyholders did not need to be paid. The Rosses object upon the basis that this is an incomplete explanation. I do not view it as a necessary part of the background and, as its completeness is debatable, it should be omitted in the interests of keeping a fair balance between communications which will be circulating at the same time.
[37] A secondary objection of the Rosses to the way in which “subsequent court decisions” have been referred to is a matter of detail, with which it is not appropriate to interfere.
CP2 “The Pre-October 2014 Payment Package is based on the Dodds case”
[38] The Rosses’ objection to how Southern Response describes the determination in Dodds CA arises from the fact that the discussion focuses on the scope of contractual entitlements and obligations (determined in Avonside Holdings Ltd v Southern Response Earthquake Services Ltd),24 whereas in Ross CA the Court of Appeal determined the extent of Southern Response’s liability and damages arising from its misrepresentations and misleading conduct. I am satisfied that the proposed link to Dodds CA (which both parties accept) is appropriate but that Dodds CA can be more accurately and succinctly summarised.
CP3 “The Pre-October 2014 Payment Package is based on the Dodds case”
[39] Southern Response refers for the first time to a body which has been established — the Independent Oversight Committee (IOC). The full explanation of that body is set out later in Appendix 1.
[40] Casey Hurren, Southern Response’s general manager, provided affidavit evidence in relation to Southern Response’s Package, both on Southern Response’s
24 Avonside Holdings Ltd v Southern Response Earthquake Services Ltd [2013] NZHC 1433; Avonside Holdings Ltd v Southern Response Earthquake Services Ltd [2014] NZCA 483; and Southern Response Earthquake Services Ltd v Avonside Holdings Ltd [2015] NZSC 110, [2017] 1 NZLR 141.
initial application for directions and on its amended application. In his evidence he explains the background to the Package, which was also the subject of a press release made in December 2020 by the Minister responsible for the Earthquake Commission, the Hon Dr David Clark. The government had approved the Package to be offered to eligible AMI policyholders who settled with Southern Response prior to October 2014. In the context of the intended offering of the Package, the Ministers decided to establish the IOC to oversee the implementation of the Package, as they explained in the release “[t]o provide for policyholder and public confidence in Southern Response’s implementation of the process”.25 The Minister explained the purpose of the IOC in the terms which Southern Response quotes at page 9 of Appendix 1 and then identified the names of the four members and their backgrounds (again quoted by Southern Response at pages 9–10 of Appendix 1).
[41] The Rosses object to any reference to the IOC. As explained in CP3, Mr Skelton QC submits the use of the term “independent” is misleading. Secondly, it is not clear why class members should be told about the IOC when they will not have a right to refer claims or appeal to it. And, thirdly, any reference to it may mislead class members into thinking the IOC will somehow “protect” them.
[42] Mr Weston QC observed that it was the Crown which established the IOC. He submitted that on the evidence the IOC will provide independent oversight of Southern Response’s implementation and delivery of the Package. The IOC has been appointed specifically for that purpose and there is no suggestion in Appendix 1 that policyholders would have an ability to refer or appeal decisions to the IOC.
[43] I do not find reference to or explanation of the IOC misleading or otherwise objectionable. The IOC has an independence from Southern Response. It is an aspect of the Package (and more particularly its implementation) that may reasonably be viewed as significant.
25 Hon Dr David Clark “Proactive package for Southern Response claimants” (press release, 14 December 2020).
CP4 “Relationship between pre-October 2014 Payment Package and the Ross class action”
[44] Southern Response would refer, under this heading, to this proceeding (Ross v Southern Response Earthquake Services Ltd). Firstly, it would identify the nature and existence of this proceeding. And secondly, it would explain that customers who choose to take a payment through the Package will be required to opt out of this proceeding.
[45] The Rosses object to both the proposed heading and to the final paragraph of this section. Mr Skelton submits that the heading should simply be “The Ross class action”.
[46]It is not appropriate for the Court to interfere in the choice of heading.
[47] Mr Skelton secondly submits there should not be the proposed discussion explaining that those who choose to take the Package will be required to opt out of this proceeding (and would have to do so by the opt out date now set, being 20 December 2021).
[48] I do not view Southern Response’s proposed discussion of the requirement to opt out of this proceeding if the Package is accepted as objectionable. It is an inherent aspect of such a settlement that the policyholder in question will not pursue any further claim. The manner in which Southern Response proposes to explain that is unexceptional.
[49] Also affected by the CP4 objection is Southern Response’s intention to include reference to policyholders seeking “independent legal advice”. (This objection is repeated at CP12 and CP15).
[50] The Rosses object to the use of the adjective “independent” upon the basis it pejoratively suggests that GCA Lawyers cannot provide this advice or it is somehow compromised.
[51] I do not consider this aspect of Southern Response’s documentation, read by a lay person, would be taken as a pejorative rejection of GCA Lawyers as a source of advice.
[52] I find the references to taking “independent legal advice” unobjectionable, particularly as they simply represent Southern Response’s recommendation. The option of taking legal advice from GCA Lawyers is plainly stated, with contact details provided. It accords with the approach approved by Sackville J in Courtney 2 (above at [26]).
[53] This approach to “independent legal advice” is also somewhat supported, as Mr Weston noted, by the fact that GCA Lawyers has stated on a website:
If you do not become a client of GCA Lawyers, we will not be able to give you advice about the class action or otherwise assist you with your individual claim.
CP5 “Your options if you cash-settled with Southern Response prior to 1 October 2014”
[54] Under this heading Southern Response proposes to expand upon the incompatibility of accepting the Package and staying in the representative proceeding. The explanation would then extend to the fact that a person who opts out will no longer share in any potential benefits of the representative proceeding. For reasons parallel to those in relation to CP4 (above at [47]–[48]), I do not view this discussion as objectionable.
[55] Southern Response at this point also proposes to record costs consequences — indicating that those who stay in may be required to contribute to lawyers’ and litigation funders’ costs and expenses and those who opt out will not be required to contribute a portion to the lawyers’ or litigation funders’ costs. This proposed discussion of the costs consequences of opting out or staying in, relates to what is a developing area of the law. In a separate judgment being delivered today in this proceeding (the Setting Aside Judgment) — that is in relation to the Rosses’ application for a setting aside order — the yet to be resolved state of the law is
discussed.26 The plaintiffs still have for hearing an application for a common fund order and have signalled the possibility of alternatively applying for a fee equalisation order. As the Court has yet to rule on such application or applications in terms of either the jurisdiction or the factual justification, it would be potentially misleading to definitively state that policyholders who individually settle will not be required to contribute a portion of any settlement funds towards the costs of disbursements of GCA Lawyers or the litigation funders.
[56] Given the complexities involved, these are the very sort of matters that are appropriately raised and discussed with lawyers who can provide proper explanation as to the state of the law and their advice on likely outcomes. In the earlier passage it has been suggested that the reader take advice for more information regarding the representative proceeding. That advice is to be repeated in the following paragraph. That is an appropriate way of dealing with the complex issues involved.
CP6 “Recommendation to seek independent legal advice”
[57] In this passage, under the heading “Recommendation to seek independent legal advice”, Southern Response recommends that the reader seeks legal advice regarding their options in relation to both the representative proceeding and the Package.
[58] The Rosses, in addition to objecting to the use of the adjective “independent” (which I have already dealt with at [52] above), object to Southern Response “directing” class members to particular sources of legal advice, especially those that are owned or funded by the Crown.
[59] The only two sources of assistance specifically identified by Southern Response are Community Law Canterbury and the Greater Christchurch Claims Resolution Service (GCCRS).
[60] There is no valid objection to Southern Response identifying Community Law Canterbury, a long-established not-for-profit organisation which provides free legal assistance to people in the region. This document is Southern Response’s document,
26 Ross v Southern Response Earthquake Services Ltd [2021] NZHC 2454 [Setting Aside Judgment].
and Southern Response is accurately referring to Community Law Canterbury. That said, the reference to the GCCRS under a heading relating to legal advice is, in my view, inappropriate, albeit for reasons other than those identified for the Rosses. The website of the GCCRS identifies that the GCCRS has partnered with Community Law Canterbury to assist homeowners with legal advice. That being the case, the single reference to Community Law Canterbury is the more appropriate.
CP7 “What is the Independent Oversight Committee (IOC)?”
[61] This passage is a further reference to the IOC, and includes a link to the IOC page. It is unobjectionable for the reasons discussed at [39]–[43] above.
CP8 “EXPLANATIONS ABOUT THE DODDS CASE: Background”
[62] An objection, parallel to the objection in CP1, is made to a sentence describing Southern Response’s belief.
[63]It should not be included, for reasons parallel to those stated at [36] above.
CP9 “EXPLANATION ABOUT THE DODDS CASE: Dodds Court Decision”
[64] Under a sub-heading “Dodds Court Decision”, Southern Response provided a three paragraph explanation of the decision in Dodds CA, followed by a link to the Court of Appeal judgment.
[65] The Rosses would delete half of the third paragraph and insert two new paragraphs explaining in more detail why Southern Response was held liable for the amount of damages awarded to the Dodds.
[66] Mr Skelton explained that the proposed amendments were primarily to remove a reference to Southern Response’s “genuinely held view” (a finding not made by the Court of Appeal in Ross CA) and to include more detail as to the basis of the findings of explicit misrepresentation.
[67] Mr Weston submitted the explanation of the Dodds decision is only background material, with Southern Response not attempting to disguise the fact that
its statements were misleading and constituted misrepresentations. He indicated in submissions that Southern Response would not object to further reference to such conduct if the Court considered it reasonably required.
[68] I do not consider the passages referred to are objectionable, save in relation to the reference to a “genuinely held view”. In particular they fulfil the purpose of providing a reasonably succinct but accurate summary of the Dodds case (together with the ability of the reader to go to the decision itself) to inform the reader of the background to the Package.
CP10 “INDEPENDENT OVERSIGHT COMMITTEE”
[69] It is in this section that the IOC is more fully described. I have already determined (at [39]–[43] above) that this content is acceptable.
Appendix 2: Registration form
[70] In Appendix 2, Southern Response provides a registration form, to be available as an online form on the Southern Response website (as well as a printable PDF form). The Rosses do not object to any aspect of the registration form itself.
CP11 First draft email
[71] In Appendix 2, Southern Response provides three sample draft emails, the first being the automatic email response which will be received by an applicant who fills out the registration form.
[72] At the foot of the automatic email response, under the conclusion “Yours sincerely”, there appear the words “The Pre-October 2014 Payment Package Team”. The Rosses propose such description be replaced with the name “Southern Response Earthquake Services Limited”, so policyholders know who is communicating with them.
[73] The recipient of this automatically generated email will be receiving it only if they have responded to the communication on Southern Response’s webpage by returning to Southern Response the completed registration form available on that
webpage. It will be clear to the recipient that the response is from Southern Response. If Southern Response chooses to have a designated team for the purpose of dealing with such responses, it is not for the Court (or others) to tell Southern Response that its correspondence should be otherwise signed.
CP12 Second draft email
[74] In relation to the second draft email response, the Rosses repeat their objection to reference being made to “independent” legal advice, which I have already ruled on (at [52]) above.
Appendix 3: Marketing material
[75] The Rosses raise no objection to Appendix 3, which contains Southern Response’s draft radio scripts and content for print and digital advertisements.
Appendix 4: Direct communication with customers (Phase 2 or where a customer requests written information)
CP13 “Relationship between Pre-October 2014 Payment Package and the Ross Class Action”
[76] Southern Response has adopted in the (Appendix 4) proposed direct communications with customers the same paragraph as discussed (under CP4) at [47]–
[48] above. For the reasons stated there, it is not objectionable.
CP13 “Your options if you cash-settled with Southern Response prior to 1 October 2014”
[77] Once again, Southern Response has adopted the same paragraphs here as it proposed for its webpage content, discussed above at CP5 ([54]–[56]). The same conclusions as there stated apply here.
CP15 “Recommendation to seek independent legal advice”
[78] Southern Response has once again adopted the same discussion as occurred in its proposed webpage content (above at CP6, [57]–[60]). The same conclusions as are there reached apply here.
[79] The Rosses, again, object to Southern Response’s communication to customers bearing “The pre-October 2014 Payment Package Team” as signatory. In relation to this direct communication such a signature is satisfactory only if the heading to the communication is expressly in the name of Southern Response Earthquake Services Ltd. This aspect of Appendix 4 is approved upon the assumption there will be such a heading in the Appendix 4 document. Otherwise the signatory should be “Southern Response Earthquake Services Ltd”.
Appendix 5: Letterbox drop to Canterbury households (Phase 3 — if required) CP16 “Am I eligible for a payment?”
[80] In one paragraph of the proposed form of letter for a potential letterbox drop to Canterbury households, an explanation is given as to the options to stay in or opt out of the representative proceeding, with an additional statement as to non-liability for the costs and disbursements of GCA Lawyers and the litigation funders. For parallel reasons to those I have discussed (above at [54]), the brief explanation of the alternatives — staying in the class proceeding or settling directly with Southern Response — is legitimate. On the other hand, for the reasons also previously discussed (above at [55]), the proposed discussion as to non-liability for costs should be excluded.
[81] The Rosses, again, object to “the pre-October 2014 Payment Package Team” appearing as signatory. It is a satisfactory signatory only if the heading to the letter is expressly in the name of Southern Response Earthquake Services Ltd. That aspect of the letter is approved upon the assumption there will be such a heading.
Content of Southern Response’s communications — approved forms
[82] The forms of communication proposed by Southern Response are therefore for the most part approved but subject to amendment in terms of the above findings.
[83]I set out in Appendices 6–10 the communications as approved.
Timing of Southern Response’s communications
[84] I have determined Southern Response should not be precluded from communicating its Package during the opt out period.27
[85] Under the Notification Judgment, the opt out deadline is 5.00 pm, 20 December 2021.28 The notice of opt out rights approved in the Notification Judgment will be advertised approximately three weeks from the date of this judgment and the class members notices, for delivery to class members for whom contact details exist, will be posted or emailed (by Southern Response) within three weeks.29
[86] Southern Response, by its amended application (as set out at [14] above) seeks confirmation that it may initiate its proposed communications in two tranches — “Initial Communications” (involving webpage, radio and print media) to be followed by “Further Communications”. Those communications would then be followed by any negotiations.
[87] There is an obvious parallel between the two stages of communication to be made pursuant to the Notification Judgment orders and the orders sought by Southern Response in relation to its communications. Each has an advertising phase as well as individual correspondence.
[88] Given the entitlement of class members to make their decisions on an informed basis, close timing between each stage of the two sets of communications is appropriate. With the cross-references in the communications relating to the representative proceeding and the (Southern Response) Package respectively, the approved communications relating to each should be available to class members and policyholders around the same time.
27 See above, at [22]–[24].
28 Notification Judgment, above n 16, at [196(a)].
29 Notification Judgment, above n 16, at [196(a)].
[89] I will accordingly be directing that Southern Response’s Initial Communications be made:
(a)through the webpage content initially placed no earlier than two weeks after and no later than four weeks after the date of this judgment; and
(b)radio and print media advertising to appear no earlier than three weeks after the date of this judgment.
[90] I will be directing that Southern Response’s Further Communications may take place at any time after the date that is four weeks from the date of this judgment.
Leave reserved
[91] Leave will be reserved to Southern Response to apply at short notice to alter or add to the approved communications and associated directions as may be required by changing circumstances. This leave will not constitute a licence to attempt to relitigate matters which have been determined by this judgment or which could have appropriately been the subject of submissions at the hearing of this application. It is a precautionary leave to ensure that the process ahead does not break down due to some changed or unanticipated circumstance.
Orders
[92]I order:
Communications
(a)The communications of Southern Response Earthquake Services Ltd (Southern Response) with class members are approved in the terms set out in Appendices 6–10 of this judgment.
(b)References in these orders to “Southern Response” include the employees, officers, and directors of Southern Response.
Initial Communications
(c)Appendix 6 represents the webpage content that may appear on Southern Response’s main website and be accessible through the main website ( and directly through
7 represents the approved registration form (that policyholders may complete and submit in order to assess their eligibility to participate in Southern Response’s settlement package (the Package)) together with the email responses and follow-ups which Southern Response may engage in.
(e)Appendix 8 represents the marketing material relating to the Package that Southern Response may use in the radio and print media.
Further Communications
(f)Appendix 9 represents the form of letter that may be mailed out directly to policyholders (including class members) for whom Southern Response holds contact details following the Initial Communications and to any policyholder (including class members) who requests information in writing during the Initial Communications phase.
(g)Appendix 10 represents the form of letter that may (at the election of Southern Response) be delivered through a letterbox drop to Canterbury households in light of the response to the Initial Communications.
(h)Southern Response may as part of the Further Communications engage in such further oral or written communications with individual policyholders (including class members) as may be necessary to progress discussions which have already occurred, including (but not limited to) telephone contact, in-person discussions and email.
Liberty to negotiate and/or settle claims
(i)Southern Response shall be at liberty to negotiate and/or settle claims with individual class members in this proceeding.
(j)Southern Response’s negotiation and settlement of claims with individual class members may take place through any legal representative engaged by the individual class member (whether or not the legal representative is GCA Lawyers).
Timing
(k)The webpage content (Appendix 6) shall initially be placed no earlier than two weeks after and no later than four weeks after the date of this judgment.
(l)The radio and print media advertising (Appendix 8) shall appear no earlier than three weeks after the date of this judgment.
(m)Southern Response’s Further Communications may take place at any time after the date that is four weeks from the date of this judgment.
Leave reserved
(n)Leave is reserved to Southern Response, in the event the implementation of these orders becomes impracticable, to apply for further directions by way of alteration or addition to these orders.
Costs and disbursements
(o)The costs and disbursements of Southern Response’s amended application and the opposition to it are reserved.
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 G D R Shand, Christchurch
Counsel: S M Grieve, Barrister, Christchurch
Appendix 1: Webpage content
HOME PAGE
Background to the Package
In December 2020 the Government announced a payment package for affected customers who cash settled with Southern Response prior to 1 October 2044. We refer to this pacI‹age as the "Pre-October 2014 Payment Package" or "Package“.
Prior to October 2014, Southern Response did not ordinarily pay professional fees and contingencies for ’Buy Another House’ or other cash settlement options. the company believed those costs did not need to be paid if they were not going to be incurred in an actual rebuild or repair.{ Subsequent -se++rt-deci§)ons of the Court of Appeal in October 2014 and the Supreme Court in July 2015 Dav+said those costs should be included in the calculation of the total cost to rebuild or repair a property Based on these decisions, Southern Response commenced paying these costs in insurance settlements entered after October 2014.
The Pre-October 2014 Payment Package is based on the Dodds case
The Package now available has been informed by the Oodds Court of Appeal decision. This decision determined that ISouthern Response made false and misleading representations and enqaqed in misleadinq and deceptive conduct by teI]i Mr d M s Dodd
oeetin edda]-who settled before
October 2014) that Southern Response’s estimate of the cost to rebuild their house was 5895,937 when that was not Southern Response‘s estimate of the full rebuild cost.] More information about the Oodds case can be found here: [insert link to Dodds page]
Based on the findings in the Dodds case, and depending on each individual customer’s circumstances, a payment under the Package may include:
•An allowance for professional fees
•A contingency sum, and
•
Interest
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A contribution toward the cost of getting independent legal advice on any Package payment offered to you may also be available.
@..........”............................................................. ..
More information about the Package is provided on our FAQ page here: [insert link] Eligibility for the Pre-October 2014 Payment Package
To find out more about eligibility for the Package follow the link here
To find out if you may be eligible for the Package and to apply, please follow the link here [add link].
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The Pass class
action
A class action has been brought against Southern Response by Brendan and Colleen Ross as plaintiffs on their own behalf and on behalf of all persons who are “class members" aa defined by orders made by the Court of Appeal (the judgment can be found online here . It deals with the same substantive issues as the Oodds case. This is an ’opt-out' class action, so all class members are included in the class ac!Ton and bound by any resulting court judgment, unless they choose to opt out and take active steps to do so.
The Pass class action is being run by GCA Lawyem, who are the solicitor for Mr and Mrs Ross, and is funded by litigation funders, Claims Funding Australia Pty Ltd.
For more information regarding the Ross class action, please refer to the GCA
Lawyers webpage: www acalawyers comlsroaa, contact GCA Lawyers on 03 365
1347 or email [email protected]; or seek your own legal adyice. To view the Class Action Notice for the Ross class action, please visit: (web iink to” " be inserted].
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Recommendation to seek ledegeedeet-legal advice
WSouthern Response recommends that you get legal advice regarding your options in relation to both the Ross class action and the Pfe-October 2014 Payment Packages
If you have engaged GCA Lawyers or another lawyer to act for you in relation to your pre-October 2014 settlement with Southern Response, the Ross class action or similar issues, your lawyer should contact wsouthern Response regarding your participation in the Package. Any such communications should be addressed to reqistration@southernresponse co nz.
ELIGIBILTY:
Pre-October 2014 Pay ment Package
AMI policyholders who cash settled with Southern Response prior to October 2014 m ay be eligible for an additional payment of certain professional 1ées and contingencies if they have not previously been paid those costs.
Am I eligible?
To help you understand whether you may be eligible for the Pre-October 2014
Payment Package, please answer the questions below:
Did you own a house insured by AMI and make an insurance cl aim for damage
to that property arising from the Canterbury Earthquake Sequence?
YES0
NO 0
DON'T KNO\/\/ 0
Did you eettle your insurance claim with AMI or Southern Response between 10 September 2010 and 1 October 20142
YES 0
NO 0
DON‘T KNOW0
Did you cash settle your claim with Southern Response (as opposed to Southern Response managing the repair or rebuild of your home)?
YES 0
NO0
DON’T KNOW0
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It a customer clicks 'Yes' for all questions they will receive the following message.' Because you answered ’Yes' to all of these questions, you may be eligible for the Pre-October 2014 Payment Package and we encourage you to apply. Please click here to fill in an online n°gistration form or download a printable wrsion of the form here Once we have received your registration, Southern Response will review your individual claim file to assess whether you are eligible for a payment.
If a customer clicks ’Ho’ to any guestion, tñey will receive tile following message: Your answer indicates you will not be eligible for the Pre-October 2014 Payment Package. ]f you would like to understand more about the eligibility f0r this Package and why you may not qualify, please refer to the FAQ paqe or contact us for more information by emailing [email protected] or phoning 0800 501 525.
If a customer c/Uma ’Oon’/ Know’ at any polnt, they w'i// receive the following
message:
If you do not have the relevant information about your claim, or do not understand the eligibility criteria, please contact us at [email protected] or phone 0800 501 525.
FAQ PAGE:
Frequently Asked Questions
What types of AMI insurance policy are eligible for this payment package?
This package broadly covem Southern Response cash settled insurance claims. The AMI policies included in the Package are:
Premier House Policy
Premier Rental Property Policy Market Value House Policy
Market Value Rental Property Policy
Why are Southern Response managed repairs and rebuilds excluded from the package?
If your claim was settled through a Southern Response managed repair or rebuild, Southern Response paid for all actual rebuild costs as they were incurred (including any variations that arose durinp the rebuild process, which would be paid for using the contingency sum). Therefore there an= no unpaid professional fees or contingency amounts.
Why are cash settlements after 1 October 2014 not included in this package 7
The Pacl‹age is focused on cash settlements prior to 1 October 2014 because policyholders who cash settled With Southern Response after October 2014 have received professional fees and a contingency sum already.
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How will you calculate the payments under this Paef‹age?
In general tarms, calculating Southern Response‘s offer to you under the Package begins with calculating the professional fee and contingency amounts applicable to your individual settlement under the Package. These amounts will be:
For professional fees, a figure representing at least 6% of the base construction cost for the rebuild or repair of your property, and
For the contingency sum, a figum iepresenting at least 10°A of the base construction costs plus professional fees as calculated.
You may be eligible for a higher allowance for professional fees or contingency if a higher allowance was provided for in the DRA held by Southern Response (often referred to as The "Internal DRA"). The DRA, or Detailed Repair/Rebuild Analysis, was a scope of works document prepared by Southern Response’s agent Arrow.
Interest will be calculated on the total of the professional fee allowance and contingency sum. The total of professional fees, contingency sum and interest will be the gross (or preliminary) calculation.
In calculating our offer, we will nead to dedud amounts we have already paid you for professional fees and/or contingency in your original settlement.
We will alco need to account for any matters particular to your insurance policy
andfor oñginal settlement, such as:
where ttie relevant policy had a specified maximum sum insured;
where you elected to take a cash settlement for the depmciated market value of your property, or
where shared property was involved (such as a shared fence or driveway).
Matters such as these may reduoe or eliminete our offer under the Package depending on the particular detail and circumstanoes of your previous settlement.
There are many variations in the application of these basic principles to reflect circumstances relevant to each cage and thls is a broad outline only. Any offer of payment that we make to you will set out hgw we have calculated our offer. You will be able to take this information and seak professional advice, and we strongly encourage you to do so.
You should also take advice about your GST and tax obligations.
-xampfe • this is a general exampfe only. the offer m each policyholder is subject to calculation and review of the specific cimumstariees, Including how The claim was or/grna//ysett/ed. All £/gales fn tlila example are GST lncl zrslve.
Tñe basa construction cost for Mr and Mrs Sm/f/ys house rebuild was $500,000, which was disclosed in their DRA. The internal DRA for (heir property (not disclosed) had an allowance tar professional fees of $40,000 and an allowance for contingencies of 8%. Mr and Mrs Smitñ settled //ie/r insurance claim with Southern Response on 1 July 2OJJ for $500,000.
Ttie professional fee allowance for their property under ttie Pie-October 2014
Payment Package is 6%. Ttie contingency allowance is J 0%.
Professional fees, being the higher a I either.
• the amount in the Internal DRA -- g4o, 000; or
• 6é mud/ip/ied 6y he 6ase consfrucf/on cos/ ($500,000), being tñe minimum °/'« (or professional fees as part oFff/e Pa ckage -- $30,000
$40,000.00
Contingency sum, being the higher of eithar.
• flue 8#» allowance in tile Internal DRA multiplied by I/ie base construction oost plus professional fees (s5 0,000) -- $43,z00, r
• 10°/’v multiplied by the base consf/T/ct/on cost plus professional fees ($540,000), being th e minimum #» for contingency as part of the Package -- $54,000
$54,000.00
Svbtotdl
$94,000.00
Apply interest fa ttie su#ro/a/ (fii94, 000) using the Ministry
of' Justice Civil Debt in/eres/ Gatcuietor from dale of original settlement (I July 2013) to date o/ Package settlement (2 March 202 ! , for this example)
$27,740.24
To(6l $J 2J,740.24
Why are you making deductions to my calculated payments
It will be necessary to make deductions in some circumstances to ensure the same costs are not paid twice, and to ensure any payment is within the parameters of your insurance policy. For example:
Some costs may already have been paid or delivered ]o customers at the time they settled their claim, such as when professional fees were expressly negotiated as part of the original settlement.
Customers who originally took a market value cash settlement offer under a Premier policy will haye their package payment depreciated by the same percentage the independent property valuer applied to the original settlement.
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A stated sum insured should not be exceeded, so package payments should not be made beyond any monetary stated aum insured (ie a policy cap). This means payments may need to account for The monetary sum insured under the relevant AMI policy.
EXPLANATION ABOUT THE DODDS CASE:
Background
Prior to October 2014, Southern Response did not ordinarily pay professional fees and contingencies for ‘Buy Another House‘ or other cash settlement options. coe+gae-y- Beli see—sests—diet—eel
i+is Sub§equent court decisions have said those
costs should be included in the calcula]ion of the total cost torebu'ild or repa'ir*a
property.
Dodds Court Decision
Mr and Mrs Dodds took Southern Response to Court to claim costs listed in the "Office Use Section“ of an internal scope of works document known as a DRA (broadly, professional fees and contingency), which were not included in the original settlement of their insurance claim.
Prior to settling the Dodds' insurance claim for earthquake damaqe to their house in 2013 Southern Response provided the Dodds with a "customer copy' of the DRA But the copy of the DRA provided to the Dodds did not include professional fees continqency and other sums that were included in Southern Resoonse’s internal DRA
Southern Response told the Dodds that the estimate in the customer cow DRA of approximately $895 000 was the estimated cost to rebuild their house It did not tell the Dodds that its internal oGce ooDy recorded a hiqher rebuild estimate of approximately $1 187 000
The Court ruled that,
Appeal did ooh make any finding ebouf Southern Response’s
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the Dodds that the estimated cost to rebuild their house was $895 000, it-Southern -'
Southern Response was ordered to pay damages calculated as the difference between the true value of their rights under their policy (ie. including the professional fees, contingencies and administration cocts in the Internal DRA document) and the sum they had previously settled with Mr and Mrs Dodds. Interest was also awarded on the final judgment sum from the date of the original Settlement and Discharge Agreement until the date of payment.
The Court did not require Southern Response to pay all costs listed in the “Office
Use Section" of the InEernal DRA — demolition costs were not included as they had already been incurred by Southern Response, and “Arrow DRA" and “Arrow PMO" costs were not included as they ware insurance claim handling costa for Southern Response for which the Dodds would not have reoeived compensation under the insurance policy.
) The Dodds Court of Appeal decision is available here.
The Pre-October 2014 Payment Package is informed by the findings of the Dodds Court case, so that people in a similar situation to Mr and Mrs Dodds do not have to go through the courts to get their payment.
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Appendix 2: Registration form
The following registration form c/// 6e axa//a6/e as an online la/in art /‘//e Soo'///eri7 Response website, and a printable RDF (am) custome s can clownIoad from the website or request From Soui(i em Response directly.'
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When an applicant ////s out' he reg/sJraf/oil Lori n, //tey wi// receive he Following
Email Su6/ecf:
Southern Response Pre-October 2OJ4 Payment Package. Copy of your registration
Atta chment.- Registration form / repoil
Thank you for filling out a reg/sfre/ion form for the Pre-October 2014 Paymen t Package. Ttiis email confirms our receipt oI your registration Please find attached:I a copy of your completed registration form for your reference.
Please review this registration form and, if you find any of he inforirlation you provided is incorrect, please let us know as soon as possible by con/ac/ing [email protected], referencing your full name, the date of your registration, and hue change/s needed.
Our team will now review your registralioi to ensure we cart identify you and/or the property ii gt/es//on in our system. It we require any lowlier ipforma/ion to 6e ad/e fa do that, we will be in contact with you using hue contact details you have provided on this form.
We will be in contact shortly regaibing your eligibility for this payirien( package.
Xti
°•° ^°.'ebm2014fi'ayeientPaekage éarn Southern Response EarthguakeServices Lfd
Responding to initial email queries
Dear NAME,
We acknowledge your enquiry, received by email, regarding the Pre-Octob er 2014
Payment Package.
The purpose of this Package is to ensure AMI policyholders who received a cash settlement from Southern Response prior fo Y October 2014 under a ‘B uy Another House’ or other oash settlement option, are ad/e to receive additional payments for cont/ngeneies and certain prol'essionaI lees if I/jey did not receive those costs at the
I(you would lika more inFozmafion a5ou/ his Package, please visit oui we6s/Ie — nz/popp If you believe you may be eligible for his Package, we encourage you /o answer //ie e//gi6////y questions on //ie we6s/ie and than register us/ng the online or printable registration form.Once you have registered for The Package via our wedsi/e, one o/ oTJr seal will de in
If you requira assistance with the registration process or would lihe to talk to
sameone fuHher about the Package, please contact us at 0800 501 525 or reply fa
It is also important to be aware oF file current class action proceeding, the 'Ross class aotion’, which is claiming for simi/ar payments to I/lose being offered in the Pre- October 2014 Payment Package. You oan find more information about ttie Ross class action on our website — www southernresponse.co.nz/popp or ffie GCA Lawyers website - w' w.ocalawyers corn/srcca.
Southern Response recommends pu seek /gga/ advice regardi¿gyo r ..- commentva TcPlel: >* r <q«*‹ w* t
options under the Ross class action and the Pre-October 20 f4 Payment Package.
We hops I/j/s in/orma/‘ion is of assistance to you.
Kind regards,
Souffiem Response Earthquake Services Lfd
Email'to customer who have already enquired:
Dear NAME,
You have previously contacted us about the Dodds vs Southern Response court ease and how hat may afIeot you. We want to let you know Southern Response is now inviting applications for Me Pre-Octob er 2014 Payment Package announced by the Go'vernment in December last year. Please visi1 our website /or more information about this - www south emresponse co nz/popp
]t you believe you may ba eligible for this payment, we encourage you to answer ILle eligibility guestions on file website and then register using ffje online or printable registration form.
!f you require assistance with I/je reg/sfrafion process or would like to talk to someone turttler about he Package, p/ease contact us at 0800 501 525 or reply to
/f is also important to be aware of the current class action proceeding, the ’Ross r/ass aotion’, which is claiming for similar payments fa Mose being offered in he Pre- October 2014 Payment Package. You can tind more information about tñe Ross class action on co nz7popp or the CCA Lawyers webs'fle -Souffiern Response recommends you get lega[ advice regarding your options under he Ross olass aotion and the Pre- October 2014 Payment Package.
We hope tt)is in/orrna/‘ion is of assistance to you.
Kind regards,
Southern Response Earthquake Services LId
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Appendix 3: Marketing material
Marketing Strategy
Because many oI he policyholders who may be eligible for tile P(g-Oc(ober 2014 Payment Package are lime/y fa have moved homes and changed contact details since they settled with Souths.m Response, it is nacessany to include 6/oad above the line aduer4/sing la s0ek Out ttiese potentia[ claimants. The marketing schedule will include Print, Rad'o and Digital advertising.
Draft Radio Scripts:
15 second version:
Did you oash settle a Canterbury Earthguake claim with Southern Response prior to October 2014? If so, check www snuthemres0onse co nz to check whether you mig/// gua//fy for an add/tional payment.
30 second version
Some Southern Response oustomors who settled heir Canterbury earthguake claim prior to Ootob er 2014 ar0 eligible for a further payment. t(you were an AMI customer who oash settled a claim with S0utllern Response prior to October 2014, under either the B uy Another House or ano/ñer cas/j settlement option, you should go to www soulhernresponse .co.nz to find out more about fña Pre-Octoh er 2014 Payment
Draft content for print and digital advertisem ents:
Option 1:
AM/ policy/ladders who cash settled wiih Southern R'esponse prior /o Octob ar 2014 may be e//g/6/e for an additional payment of certain professional fees and contingencies if they did nod receive //iose costs at the time.
Am / e fTg /6/e ?'
Had your house insured Lip All and made an insurance cfiiim for eaHhguake damage to that property arising from the Canterbury Earthquake Sequence;
Settled your insurance olaim wittl AMI or Southern Response between 10 Seotemb er 2010 and 1 October 2014, and
Cash settled your claim wifn Southern Rgsponse, as opposed to Southern Response managing the repair or rebuild aI your tiome;
.you may be eligibie for an ar4di//ona/ payment.
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Vi8it www soutñemresponse co nz/POPP tar more informa[ion or /o register ygur
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Option 2:
Did yOu Cash setlia a Oanfer6t// Earthquake claim willi Southern Response prior to October 2014 ? It so, [click hare/visit www southernresQonse co nz/ooaoI to check whether you migñt qualify for an addinonal payment.
Optlon 3:
Some Southern Response customers who cash settled //ieir Canterbury earthquake claim prior fo October 2014 are eligible for a further payment. If you were an AMI customer who cash settled a claim wit// Southern Response prior to Ocfo6er 20f4, under either the Buy Another House or another cash settlement option (click
/iereA/sit‘ www souttiemresponse co nz/aoppl to find out more about the Pre-October 2014 Payment Pa¢l‹age.
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17¿/.*’
Appendix 4: Direct communication with customers (Phase 2 or where a customer requests written information)
Example em all/Ietter:
Dear NAME,
Wa are contacting you because you cash settled an earthquake-related insurance claim with AMI or Southern Response bet'ween 10 Sepiember 2010 and 1 October 2014.
Policyholders who cash seltled wi[h Southem Response prior to 1 Oc/‘oôer 2014 may be e/igid/e tor an addilional payment of certain professional fees and contingencies iF they did not rereive a payment tor those cosls al the time. We refer to this package as the "Pre-October 2014 Payment Package"or the "Package”.
Am l eligible for o pay'menti*
had your house insured 6y AMI and made an insurance claim for earthquake damage to ffia/ propedy arising from the Canterbury Earthquake Sequence,' and
settled your insurance claim with AMI or Southern Response between 10
September 2010 and 1 October 2014; and
cas/j ss/t/ad your c/aim w//fi Southern Response, as opposed to Southern Response managing he rapair or rebuild of your home, you may be eligible for an additional payment.
I(you meet âge eIigibilit'y criteria above, we would encourage you to visit
Prior to Oc/o6er 2OJJ, Southern Response did nof ordinarily pay professional lees and contingencies for ‘Buy Another House’ or other oasñ settlement options. The company believed those costs did not naed fo de paid if they were nat going to be incurred in an actual rebuild or mpair. Subsequent court decisions ñave said f/jose
¢osts should be included in the calculation of roe total cos/ to rebuild or repair a properly. Based on these decisions, Southern Response commenced paying these costs in insurance settlements entered aRer October 2014.
Ttie Pre•Oc‹o6er 2gf4 Payment Package is based on EAe Oodds case
The Package now avai/able has been informed by the Dodds Court of Appeal
Formatted: Font: (Delault) Arial, 12 pl decision. This decision determined these cost elements (certain professional fees
.',)
and a contingency sum) sh0uld have been peid to Mr and Mrs Oodds, who settled before October 2Of4.
Based on the findings in the Doads case, and depending on each individual
customer’s circumstances, a payment under the Payment Package may include.’
An a//owance forproiess!onal fees A contingency sum, and
lnreresf
A conf/i6ufion toward the cost of getting independent legal advice on and Package payment offend to you may also be available.
A class actlon has been brought against Southern Response by Brendan end Gollaen Ross as plaintiffs on their own behalf and on behalf of all persons who are class members" as defined by orders made by tñe Court of Appeal (tha judgment can be found online at ofiq/nz/cases/Nzcm01a' ai.html). /f dea/s with the same substantive issues as the Dodds case. This is an ’opt-out’ r/ass actian, so all class mambars are included in the class acrion and bound by any resulting court judgment, unless they choose to opt out and la/re acfive steps to do
The R°^^ class ac/iOn is being run b'/ GCA Lawyers, who are the solicitors for MI
and Mrs Ross, and is fnnde0 ay ////ga//on funders Claims Funding Australia Ply Lld.
For mom information regarding the Ross c/ass action, please refer to the GQA Lawyem webpage: com/srcca,' contact GCA Law'/ers on 03 365
1347 or emeil [email protected]; or seek your own Iefi)8! 8dvice. To view the Glass Action Notice for the Ross r/ass acr/on, plaasa visit. [wa# link to be referencedj. [to be amended If necessary depending outcome of notification
.*,* 19;;..’’
rwm°u° -rw! Kwa* *i ! g
Pec ommendation to seek legal advice
So he Res onse ecorninendps Abu get legal advice regarding your options in
re/ation fa both ILle Ross class action an d the Pie-October 2014 Payment
If you mave engaged CCA Lawyers or another lawyer to act /ér you in relation to your pre-October 2014 settlement with Southern Response, the Ross class action or similar issues, your lawyar should contact us regarding your participation in the Package.
Contact us
for further information about whether you may be eligible for a payment under the Southern Response Pre-October 2014 Payment Package, please check out our webs!te at www soulñernresponse co nz/paoa or ron arf us at registration@southernresponse co nz or phone 0800 501 i25.
Soufhern Response EartfJpuake
Services Ltd
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Appendix 5: Letterbox drop to Canterbury households (Phase 3 — if required)
An unäddressed-leiier/Iëäfiet will bg.created gif.ne ss ryi(ie. if the available oontact details. fsr patentiaIl¿:eligiblé poiieyhölders ,is insufficïentj to.be dropped /intö housëfiglds’across t/he Canterbury./region,
NB'Èhis may need arnendment depeñdirig on intervening cîrcurristances. Draft content of the letter:
Oear Householder,
AMI policyholders wLlo cash se/f/ed with Southern Response prior to October 2014 may 6e eligible (or an additional payment of certain professional fees and con/'ingencies if they did not receive ttiose costs at the lime.
had your hause insured by AM[ and ma0e an insurance c/aim for earthquake damage to that property arising from ttle Canterbury Earthguake Seguence, and
settled your insurance c/aim wiM AM7 or Southern Response between 10 Seplemb er 2010 an0 1 October 2014, and
cash settled your claim u/iM Southern Response, as opposed to Southern Respon se managing the repair or rebuild of your home; you may be e//gid/e for an additional payment.
If you meet the eligibility criteria above, we would encourage you to visi/
wwv/ soulharn(es0onse.co nz/POPP for more information or to register your interest
II is also important to be aware of the current class action proceeding, the ’Ross class action’, wfiicfi is claiming for similar payments to those being offered in the Pre- October 2014 Payment Package. As this is an opt-out class action, you may be a c/ass member in the proceeding.
We recommend you get independent legal advice regarding your oprions under the
Ross class action and the pre-October 2014 Payment Package.
For further /nformafion about whether you may be e/igi0/e for a payment under the
Pie-Oc/aber 2014 Payment Package, plaase check out ‹air website at
reaistrationfi›southemresoonse co nz or phone 0800 50a '525.
Vours sincerely,
Southern Response Eorlhauoke Services Ltd
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,''.•’,.
Appendix 6: Webpage Content
HOME PAGE
Background to the Package
In December 2020 the Government announced a payment package for affected customers who cash settled with Southern Response prior to 1 October 2014. We refer to this package as the "Pre-October 2014 Payment Package" or "Package".
Prior to October 2014, Southern Response did not ordinarily pay professional fees and contingencies for 'Buy Another House’ or other cash settlement options.
Subseauent court decisions have said those costs should be included in the calculation of the total cost to rebuild or repair a property. Based on these decisions, Southern Response commenced paying these costs in insurance settlements entered after October 2014.
The Pre-October 2014 Payment Package is based on the Dodds case
The Package now available has been informed by the Dodds Court of Appeal decision. This decision determined that Southern Response made false and misleading representations and engaged in misleading and deceotive conduct in relation to certain cost elements, which should have been paid to Mr and Mrs Dodds. More information about the Dodds case can be found here: [insert link to Dodds page)
Based on the findings in the Dodds case, and depending on each individual customer's circumstances, a payment under the Package may include:
An allowance for professional fees A contingency sum, and
Interest
A contribution toward the cost of getting independent legal advice on any Package payment offered to you may also be available.
The implementation of the Package will be overseen by an Independent Oversight Committee. [link fa IOC page]
More information about the Package is provided on our FAQ page here: [insert link] Eligibility for the Pre-October 2014 Payment Package
To find out more about eligibility for the Package follow the link here [add link].
To find out if you may be eligible for the Package and to apply, please follow the link here [add link].
Relationship between Pre-October 2014 Payment Package and the Ross class action
A class action has been brought against Southern Response by Brendan and Colleen Ross as plaintiffs on their own behalf and on behalf of all persons who are "class members" as defined by orders made by the Court of Appeal (the judgment can be found online here). It deals with the same substantive issues as the Dodds case. This is an ’opt-out’ class action, so all class members are included in the class action and bound by any resulting court judgment, unless they choose to opt out and take active steps to do so.
The Ross class action is being run by GCA Lawyers, who are the solicitors for Mr and Mrs Ross, and is funded by litigation funders, Claims Funding Australia Pty Ltd.
For more information regarding the Ross class action, please refer to the GCA Lawyers webpage: com/srcca; contact GCA Lawyers on 03 365 1347 or email srcca@qcalawyers com; or seek your own independent legal advice. To view the Class Action Notice for the Ross class action, please visit: cured link to be inserted].
Those customers who choose to take a payment through the Package will be required to opt out of the Ross class action before the Package payment is made. If you wish to opt out of the Ross class action, you must do so by 5.00 pm, 20 December 2021 as that is the date the Court has set. It is important that you do not delay in considering your options.
Your options if you cash settled with Southern Response prior to 1 October 2014
If you are eligible for the Pre-October 2014 Payment Package and also a class member in the Ross class action, you can choose whether to receive a payment through the Package or remain in the class action. You cannot do both.
If you settle directly with Southern Response, under the Package, you will be required to opt out of the class action and sign a settlement agreement with Southern Response stating you have no further claim against Southern Response. If you opt out of the class action, you will no longer be part of the class action and you will not be able to share in any potential benefits of it.
Recommendation to seek independent legal advice
We recommend you get legal advice regarding your options in relation to both the Ross class action and the Pre-October 2014 Payment Package. Community Law Canterbury provides free legal help to people in Canterbury and the Grey and Westland Districts.
If you have engaged GCA Lawyers or another lawyer to act for you in relation to your pre-October 2014 settlement with Southern Response, the Ross class action or similar issues, your lawyer should contact us regarding your participation in the Package. Any such communications should be addressed to registration@southernresponse co nz.
ELIGIBILITY:
Pre-October 2014 Payment Package
AMI policyholders who cash settled with Southern Response prior to October 2014 may be eligible for an additional payment of certain professional fees and contingencies if they have not previously been paid those costs.
Am I eligible?
To help you understand whether you may be eligible for the Pre-October 2014 Payment Package, please answer the questions below:
Didyouown ahouseinsured byAMlandmakeaninsuranceclimfordamage to that property arising from the Canterbury Earthquake Sequence?
YES0
NO 0
DON’T KNOW0
Did you settle your insurance claim with AMI or Southern Response between 10 September 2010 and 1 October 2014?
YES0
NO0
DON’T KNOW0
Did you cash se«Ie your claim with Southern Response (as opposed to Southern Response managing the repair or rebuild of your home)?
YES0
NO0
DON’T KNOW0
If a customer clicks 'Yes' for all guestions they will receive tho following message.’ Because you answered ’Yes’ to all of these questions, you may be eligible for the Pre-October 2014 Payment Package and we encourage you to apply. Please click here to fill in an online registration form or download a printable version of the form here. Once we have received your registration, Southern Response will review your individual claim file to assess whether you are eligible for a payment.
If a customer clicks ‘No’ to 6TIY Question, they will receive the following message.’ Your answer indicates you will not be eligible for the Pre-October 2014 Payment Package. If you would like to understand more about the eligibility for this Package
and why you may not qualify, please refer to the FAQ paqe or contact us for more information by emailing reqistration(2southernresponse co nz or phoning 0800 501 525.
If a customer clicks 'Don't Know’ at any point, they will receive the following
message.'
If you do not have the relevant information about your claim, or do not understand the eligibility criteria, please contact us at reqistrationtosouthernresponse co nz or phone 0800 501 525.
FAQ PAGE:
Frequently Asked Questions
What types of AMI insurance policy are eligible for this payment package? This package broadly covers Southern Response cash settled insurance claims.
The AMI policies included in the Package are:
Premier House Policy
Premier Rental Property Policy Market Value House Policy
Market Value Rental Property Policy
Why are Southern Response managed repairs and rebuilds excluded from the package?
If your claim was settled through a Southern Response managed repair or rebuild, Southern Response paid for all actual rebuild costs as they were incurred (including any variations that arose during the rebuild process, which would be paid for using the contingency sum). Therefore there are no unpaid professional fees or contingency amounts.
Why are cash settlements after 1 October 2014 not included in this package?
The Package is focused on cash settlements prior to 1 October 2014 because policyholders who cash settled with Southern Response after October 2014 have received professional fees and a contingency sum already.
What is the Independent Oversight Committee (IOC)?
The Government has established an Independent Oversight Committee (JOC) to
supervise the rollout of the Package.
For more information about the IOC , please click here [link fa /OC page]. How will you calculate the payments under this Package?
In general terms, calculating Southern Response's offer to you under the Package begins with calculating the professional fee and contingency amounts applicable to your individual settlement under the Package. These amounts will be:
For professional fees, a figure representing at least 6% of the base construction cost for the rebuild or repair of your property, and
For the contingency sum, a figure representing at least 10% of the base construction costs plus professional fees as calculated.
You may be eligible for a higher allowance for professional fees or contingency if a higher allowance was provided for in the DRA held by Southern Response (often referred to as the "Internal DRA"). The DRA, or Detailed Repair/Rebuild Analysis, was a scope of works document prepared by Southern Response’s agent Arrow.
Interest will be calculated on the total of the professional fee allowance and contingency sum. The total of professional fees, contingency sum and interest will be the gross (or preliminary) calculation.
In calculating our offer, we will need to deduct amounts we have already paid you for professional fees and/or contingency in your original settlement.
We will also need to account for any matters particular to your insurance policy and/or original settlement, such as:
where the relevant policy had a specified maximum sum insured ;
where you elected to take a cash settlement for the depreciated market value of your property, or
where shared property was involved (such as a shared fence or driveway).
Matters such as these may reduce or eliminate our offer under the Package depending on the particular detail and circumstances of your previous settlement.
There are many variations in the application of these basic principles to reflect circumstances relevant to each case and this is a broad outline only. Any offer of payment that we make to you will set out how we have calculated our offer. You will be able to take this information and seek professional advice, and we strongly encourage you to do so.
You should also take advice about your GST and tax obligations.
Example - Ttiis is a general example only. Ttie afler to eaclfi policyholder is subject to calculation and review of the speci/'ic circumstances, including how ttie claim was originally seM/ed. All figures in this example are GST inclusive.
The base construction cost for Mr and Mrs Smith’s house rebuild was $500, 000, which was disclosed in their DRA. The Internal DRA for their property (not disclosed) had an allowance for professional fees of $40,000 and an allowance for contingencies of 8°/». Mr and Mrs Smith settled their insurance claim with Southern Response on 1 July 2013 for $500, 000.
The professional fee allowance for their propedy under the Pre-October 2014 Payment Package is 6%. The contingency allowance is YO%.
• the amount in the Internal DRA -- $40,000; or
• 6°/» multiplied by the base construction cost ($500, 000), being the minimum °/'‹ for professional fees as part of the Pockege -- $30,000
$40, 000.00
Contingency sum, being the h/gher of either.
• the 8°/'» allowance in the Internal DRA multiplied by the base construction cost plus professional fees ($540,000) -- $43,200, or
• 10% multiplied by the base construction cost plus professional fees ($ifi40,000), being the minimum °/'» for contingency as part of the Package -- $54,000
$54,000.00
Subtotal
$94,000. 00
Apply interest to the subtotal ($94,000) using the Ministry
of Justice G/ // Debt /nferes/ Calculator from date of original settlement (J July 2013) /o dale of Package settlement (2 March 202a, for this example)
$2Z, 740.24
moral $121,740.24 Why are you making deductions to my calculated payment?
It will be necessary to make deductions in some circumstances to ensure the same costs are not paid twice, and to ensure any payment is within the parameters of your insurance policy. For example
• Some costs may already have been paid or delivered to customers at the time they settled their claim, such as when professional fees were expressly negotiated as part of the original settlement.
• Customers who originally took a market value cash settlement offer under a Premier policy will have their package payment depreciated by the same percentage the independent property valuer applied to the original settlement.
• A stated sum insured should not be exceeded, so package payments should not be made beyond any monetary slated sum insured (ie a policy cap). This means payments may need to account for the monetary sum insured under the relevant AMI policy
EXPLANATION ABOUT THE DODDS CASE:
Background
Prior to October 2014, Southern Response did not ordinarily pay professional fees and contingencies for ‘Buy Another House’ or other cash settlement options.
Subsequent court decisions have said those costs should be included in the calculation of the total cost to rebuild or repair a property.
Dodds Court Decision
Mr and Mrs Dodds took Southern Response to Court to claim costs listed in the "Office Use Section" of an internal scope of works document known as a DRA (broadly, professional fees and contingency), which were not included in the original settlement of their insurance claim.
The Court ruled that by not including a contingency amount or an amount for professional fees in the DRA it provided to Mr and Mrs Dodds, it had misrepresented the total cost of rebuilding their house.
Southern Response was ordered to pay damages calculated as the difference between the true value of their rights under their policy (ie. including the professional fees, contingencies and administration costs in the Internal DRA document) and the sum they had previously settled with Mr and Mrs Dodds. Interest was also awarded on the final judgment sum from the date of the original Settlement and Discharge Agreement until the date of payment.
The Court did not require Southern Response to pay all costs listed in the “Office Use Section" of the Internal DRA — demolition costs were not included as they had already been incurred by Southern Response, and “Arrow DRA" and “Arrow PMO" costs were not included as they were insurance claim handling costs for Southern Response for which the Dodds would not have received compensation under the insurance policy.
The Dodds Court of Appeal decision is available here.
The Pre-October 2014 Payment Package is informed by the findings of the Dodds Court case, so that people in a similar situation to Mr and Mrs Dodds do not have to go through the courts to get their payment.
INDEPENDENT OVERSIGHT COMMITTEE:
To provide for policyholder and public confidence in Southern Response’s implementation of the Package, the Government has established an Independent Oversight Committee (IOC).
The purpose of the IOC is to provide independent oversight, make recommendations to the board of directors of Southern Response, and report significant issues to the Crown. In particular, the IOC will, amongst its tasks:
provide independent oversight of Southern Response’s decision-making in respect of the implementation and delivery of the package;
• seek independent advice or peer review on key issues;
conduct an independent periodic review of Southern Response’s processes and decision-making in respect of the implementation and delivery of the package;
provide advice and recommendations to the Southern Response board and the Crown on matters relating to the interests of Southern Response policyholders relevant to the implementation and delivery of the package.
The members of the IOC are:
David Ayers served as Mayor of the Waimakariri District from 2010-2019, taking office shortly after the September 2010 earthquake. He held various roles in the earthquake recovery effort and is currently Chair of the Canterbury Museum Trust Board, and a member of the Christ Church Cathedral Reinstatement Review Panel.
Nina Khouri is a lawyer with international mediation experience and teaches at the University of Auckland. She has spent considerable time in Christchurch during the last six years helping resolve earthquake insurance disputes. She was involved in the design of the Greater Christchurch Claims Resolution Service and has served as a facilitator on its panel.
Sandra Sanderson was New Zealand Police District Commander for Canterbury in 2002-2007. In 2007, Sandra was aDpointed International Liaison Officer to the Americas covering the United States, Canada and South and Central America.
Following the February 2011 Canterbury earthquakes she returned to Christchurch to assist with police work in the aftermath of the disaster, then returned to Washington to complete her posting. She has served as elected member of the University of Canterbury Council and more recently she has run investigations as the Anti-Corruption Manager for the International Cricket Council.
Fiona Mules is an experienced audit and risk director and currently serves on the boards of the Reserve Bank, KiwiRail, Lyttelton Port Company, and Development Christchurch. She has undertaken consultancy work for the Christchurch City Council and Ótakaro on earthquake recovery anchor pro
Appendix 7: Registration form
The following registration form wi// 6e available as an online form on the Southern Response website, and a printable PDF form customers can download from the website or reguost from Southern Response directly.'
When an applicant fills out the iegislration form, they will receive the following automatic response by email:
Email Subject:
Southern Response Pre-October 2014 Payment Package: Copy at your registration Attachment: Registration form / report
Thank you tar filling out a registration form for the Pm-October 2014 Payment Package. This email confirms our receipt of your registration. Please land attached o copy of your completed registration form for your reference.
Please review this registration form and, if you find any of the information you provided is incorrect please let us know as soon as possible by contacting [email protected], referencing your full name, the date of your registration, and the change/s needed.
Our team wi// now review your registration to ensure we can identify you and/or the property in question in our system. If we require any further information to be able to do that we will be in contact with you using the contact details you have provided on this form.
We will be in contact shortly regarding your eligibility for this payment package. Yours sincerely,
The Pre October 2014 Payment Package Team
Responding to initial email queries
Dear NAME,
We acknowledge your enguiry, received by email, regarding the Pre-October 2014 Payment Package.
The purpose of this Package is to ensure AMI policyholders who received a cash settlement from Southern Response prior to 1 October 2014 under a ’Buy Another House' or other cash settlement option, are able to receive additional payments for contingencies and certain professional fees if they did not receive those costs at the lime.
If you would like more information about this Package, please visit our website — www southernresponse co nz/popp If you believe you may be eligible for this Package, we encourage you to answer the eligibility questions on the website and then register using the online or printable registration form.
Once you have registered /’or I/ie Package via our website, one ot our staff will be in contact with you regarding your application.
If you require assistance with the registration process or would like to talk to someone further about the Package, please contact us af 0800 501 525 or reply to
It is sha important to be awale of he curient class action proceeding, the ’Ross class action', which is claiming for similar payments to those being offered in the Pre- October 2014 Payment Package. You can find mole information about he Ross class action on our website - co nz/oooo or the GCA Lau/yers website - www gcalawyers.com/srcca.
Southern Response recommends you seek independent legal advice regarding your options under the Ross class ection and the Pro-October 2014 Payment Package.
We hope this information is of assistance to you. Kind regards,
Email to customer who have already enquired:
Dear NAME,
You have previously contacted us about the Dodds vs Southern Response court case and how that may affect you. We want to let you know Southern Response is now inviting applications for the Pre-October 2014 Payment Package announced by the Government in December last year. Please visit our website for more information about this - www southemresponse.co.nz/papa
If you believe you may be e/igi6/e for this payment, we encourage you to answer the eligibility guestions on the website and then register using the online or printable registration form.
If you reguire assistance with the registration process or would like to talk to someone further about the Package, please contact us at 0800 501 525 or reply to this email.
It is also important to be aware of the current class action proceeding, the ’Ross class action‘, which is claiming for similar payments to those being a//éred in the Pre- October 2014 Payment Package. You can find more inlbrmation about the Ross class action on or the GCA Lawyers vre6si/e - w'wu/ pca/awyers com/srcca.
Southern Response recommends you get independent legal advice regarding your options under the Ross class action and the Pre-October 2014 Payment Package.
We hope this information is of assistance to you.
Appendix 8: Marketing material
Marketing Strategy
Because many of the policyholders who may be eligible /'or the Pre-October 2Of4 Payment Package are likely to have moved homes and changed contact details since they settled with Southern Response, it is necessary to include broad above the line advertising to seek out these potential claimants. The marketing schedule will include Print, Radio and Digital advertising.
Draft Radio Scripts:
15 second version'
Did you cash settle a Canterbury Earthquake claim with Southern Response prior to October 2014? If so, check www southemresponse co nz to check whether you might qualify for an additional payment.
30 second version
Some Southern Response customers who settled their Canterbury ea/thgua/re claim prior to October 2014 are eligible for a further payment. If you were an AMI customer who cash settled a claim with Southern Response prior to October 2014, under either the Buy Another House or another cash settlement opfion, you should go to www southemresponse co nz to find out more about the Pre-October 2014 Payment Package.
Draft content for print and digital advertisements:
Option 1:
AMI policyholders who cash self/ed with Southern Response prior to October 2014 may be eligible /’or an additional payment of certain professional fees and contingencies if they did not receive those costs at I/ie time.
Am / e/ig/die*
Had your house insured by AMI and made an insurance claim for earthquake damage to that property arising from the Can/erdury Earthquake Sequence; and
Settled your insurance claim with AMI or Southern Response between 10
September 2010 and 1 October 2014, and
Cash settled your claim with Southern Response, as opposed to Southern Response managing the repair or rebuild of your home;
.you may be eligible for an additional payment.
V/sit www southemresponse co nz/POPP for more information or to register your interest.
Oid you cash settle a Canterbury Earthquake claim with Southern Response prior to October 2014? If so, [click here/visit www southemresoonse co nz/popp[ to check whether you might qualify for an additional payment.
Option 3:
Some Southern Response customers who cash settled their Canterbury earthguake claim prior to October 2014 are eligible for a further payment. If you were an AMI customer who cash settled a claim with Southern Response prior to October 2014, under either the Buy Another House or another cash settlement option [click here/visit www southemresoonse co nz/popp] to //ncf ou/ more adou/ the Pre-October 2014 Payment Package.
Appendix 9: Direct communication with customers (Phase 2 or where a customer requests written information)
Example email/leaer:
Dear NAME,
We are contacting you because you cash settled an earthgual‹e-related insurance claim with AMI or Southern Response between 10 September 2010 and 1 October 2014.
Policyholders who cash settled with Southern Response prior to 1 October 2014 may be eligible for an additional payment of certain professional fees and contingencies if they did not receive a payment for those costs at the time. We refer to this package as ihe "Pre-October 2014 Payment Package“ or he "Package”.
Am I eligible for a payment?
had your house insured by AMI and made an insurance claim for earthquake domoge to thot property arising (rom the Conterbary Horlhquake Sequence,
settled your insurance claim with AMI oi Southern Response between 10 September 2010 and 1 October 2014, and
cash settled your claim with Southern Response, as opposed to Southern Response managing the repair or rebuild of your home, you may be eligible for an add//iona/ payment.
If you meet the eligibility criteria above, we would encourage you to visit
www southernresponse co nz/POPP for more information or to register your interest
Background
Prior to October 2014, Southern Response did not ordinarily pay professional fees and contingencies for 'Buy Another House' or other cash settlement options. The com9ony believed those costs did not need to be pai6 il they were not going to be incurred in an actual rebuild or repair. Subsequent court decisions have said those costs should be included in the calculation of the total cost la rebuild or repair a property. Based on these decisions, Southern Response commenced paying these costs in insurance settlements entered after October 2014.
The Pre•October 2014 Payment Package is based on the Dodds case
The Package now available has been informed by the Dodds Court of Appeal decision. This decision determined these cost elements (certain professional fees
and a contingency sum) should have been paid to Mr and Mrs Dodds, who settled
befoie October 2014.
Based on the findings in the Dodds case, and depending on each individual customer’s circumstances, a payment under the Payment Package may include:
• An allowance for professional fees
• A contingency sum, and
• interest
A contribution toward the cost of getting independent legal advice on any Package payment offered to you may elso be available.
Re/ations/lip 6e/ween Pre-October 20f4 Payment Package and the Roaa clasa
A class action has been brought against Southern Response by Brendan and Coffees Ross as plaintiffs on i'/ieir own behalf and on behalf of all persons who are “class members“ as defined by orders made by the Gouit of Appeal (the judgment can be [Fund onl¡ne at f/ffp nzI¡i oIp/nz/cases/NZCA/2019/4B1.html). II deals with the same substantive issues as I/ie Oodds case. This Is an ’opt-out' class action, so all class members are included in the c/ass action and bound by any resulting court judgment, unless they choose to opt out and take active steps to do
The Ross class action is being run by GCA Lawyers, who are the solicitors for Mr and Mrs Ross, and is funded by litigation funders Claims Funding Australia Ply Ltd.
For more information mgarding he Ross class action, please refer to the GCA
La 'yers webpage.' www ecalawyers com/srcca, contact GCA Lawyers on 03 365 1347 or email [email protected], or seek your own independent legal advice. To view the Class Action Notice for the Ross class action, pleasg v/sit.' [web link to be referenced]. [to be amended if necessary depending outcome of notification application]
Those customers who choose to take a payment through lie Pre-October 2014 Payment Package will be required to opt out of the Ross class action befom the P6Ckag8 payment is rriade. If you wish to opt out of the Ross class aCtiOTt, yOU ITIUSt do so by 5.00 pm, 20 December 2021 as that is the date the Gourt has set. It is important you do not delay in considering your options.
Voyr options i(you cash settled with Southern Response prior to 1 October
If you are eligible for the Pre-October 2014 Payment Package and also a class member in the Ross class action, you can choose whether to receive a payment through the Package or iemain in the class action. You cannoi do both.
If you settle directly with Southern Response under the Package you will be reguired to opt out of the class action and sign a settlement agreement with Southern Response stating you have no further claim against Southern Response. If you opt out of the class action, you will no longer be part of the class action and you will not be a6/e to share in any potential banert of it.
Recommendation to seeh independent /ega/ aduice
We recommend you get legal advice regarding your options in relation to 6of// the Ross class action and the Pre-October2014 Payment Package. Cornmunil:y Law Canterbury provides free legal help to people in Canterbury and the Grey and Westland Districts.
If you have engaged GCA Lawyers or another lawyer to act for you in relation to your pre-October 2014 settlement with Southern Response, the Ross class action or similar issues, your lawyer should contact us iegarding your participation in the Package.
For fudher information aöouf whether you may be eligible for a payment under the Souther Perponse Pre-October 2014 Payment Package, please check out our website at www southemæsponsa co nz/oooo or contact us at registration@southemresponse co nz or phone 0800 501 525.
Yours sinceiely,
The Pre-Oclober 2014 Payment Package Team
Appendix 10: Letterbox Drop To Canterbury Households (Phase 3 — If Required)
An unaddressed letter/leaflet will be created if necessary (ie. if the available contact details for potentially eligible policyholders is insufficient) to be dropped into households across the Canterbury region.
NB this may need amendment depending on intervening circumstances. Draft content of the letter:
Dear Householder,
AMI policyholders who cash settled will Southern Response prior to Ocfo6er 2014 may be eligible for an additional payment of certain professional fees ancl contingencies if they did not receive those costs at the time.
Am I eligible for a payment? If you.
had your house insured by AMI and made an insurance claim tor earthquake damage to that property arising from the Canterbury Earthguake Seguence,
settled your insurance claim with AMI or Southern Response between 10 September 2010 and 1 October 2014, and
cash settled your claim with Southern Response, as opposed to Southern Response managing the repair or rebuild of your home,' you may be e/ig/d/e
If you meet the eligibility criteria above, we would encourage you fo visit for more information or to register your interest.
It is also important to be aware ot the current class ac//on proceed/ng, he ‘Ross class action’, which is claiming for similar payments to those being offered in the Pre- October 2014 Payment Package. As this is an opt-out class action, you iriay be a class member in the proceeding.
The Pre-Oc/oder 2014 Payment Package is an alternative option to the Ross class ac//on. If you are eligible for the Pre-October 2014 Payment Package, you have the option to either stay in the class action or to opt out and take a payment directly from Southern Response. You can find more information about the Ross class action on the GCA Lawyers website - www gcala wyers con›/srcca.
We recommend you get independent legal advice regarding your options under the Ross class action and the Pm-October 2014 Payment Package.
For further information about wf/e///er you may 6e eligible for a payment under the Pie-October 2014 Payment Package, please check out our w'eôsife at or contact us at moistration@soulhernfiesoonse co nz or phone 0800 501 525.
Yours sincerely,
The Pre-October 2014 Payment Package Team
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