Ross v Southern Response Earthquake Services Ltd - [2021] NZHC 2454

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000361

[2021] NZHC 2454

BETWEEN
BRENDAN MILES ROSS and COLLEEN ANNE ROSS

Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing: 14 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 for B & L Vickers and others (Intervening)

Judgment:

20 September 2021

JUDGMENT OF OSBORNE J

(setting aside 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 2454 [20 September 2021]

TABLE OF CONTENTS

Introduction [1]

Application for a setting aside order [4]

The litigation to date [6]

Progress of other litigation and claims [11]

Discussion [16]

The plaintiffs’ litigation arrangements [16]

The (Southern Response) Package [18]

Common fund orders, fee equalisation orders, and other orders [23]

The detail of the Rosses’ application and grounds [30]

Southern Response’s opposition and grounds [42]

Position of the intervening policyholders [51]

What this judgment will not determine [60]

The approach to interim relief [65]

The various concerns in relation to a setting aside [65]

Applicable principles [71]

Assessment of the competing interests in this case [76]

Serious question to be tried [76]

The balance of convenience [78]

The overall justice of the case [88]

Outcome [92]

Orders [93]

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 Service Ltd (Southern Response).2 Mr and Mrs Ross’s claim relates to a settlement agreement they 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 or misrepresented information about the cost of remedying earthquake damage to their home. As a result they cash- settled on a less favourable basis than they otherwise would have.

[2] It has been estimated there may be approximately 3,000 policyholders similarly affected. This judgment, one of four interlocutory judgments issuing today, deals with the Rosses’ application for a “setting aside order”.

[3] The Rosses have before the Court an (adjourned) application for a common fund order, a means by which the costs of the proceedings otherwise borne by the plaintiffs would be ordered to be shared by other class members.

Application for a setting aside order

[4] The setting aside order sought by the Rosses would require Southern Response, in the event it reaches settlement with any class member, to establish an interest- bearing escrow account and to set aside and pay into the escrow account 15 per cent of the agreed settlement sum. The plaintiffs seek a further order that no payment be made from the escrow account unless and until approved by the Court following…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NZHC 2454
Decision Date: 20 September 2021

CaseChat Overview and Summary

In this proceeding, Brendan and Colleen Ross bring a representative claim against Southern Response Earthquake Service Ltd. They allege that Southern Response provided them with incomplete or misrepresented information about the cost of remedying earthquake damage to their home. As a result, they cash-settled on a less favourable basis than they otherwise would have. It has been estimated there may be approximately 3,000 policyholders similarly affected. The Rosses have before the Court an application for a setting aside order. The setting aside order sought by the Rosses would require Southern Response, in the event it reaches settlement with any class member, to establish an interest-bearing escrow account and to set aside and pay into the escrow account 15 per cent of the agreed settlement sum. The plaintiffs seek a further order that no payment be made from the escrow account unless and until approved by the Court following determination of the plaintiffs’ common fund application. Southern Response opposes the setting aside order, as do Brandon and Leonie Vickers (and others) who, as policyholders, were granted leave to intervene in this and associated applications. The Court refused the application for a setting aside order. The costs and disbursements of the application (and opposition) were reserved.

Orders