Legal Research
Cases
Ross v Southern Response Earthquake Services Ltd

Ross v Southern Response Earthquake Services Ltd

Link copied

Case Copied 20 September 2021 68 min read

Contents

On this page

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000361

[2021] NZHC 2452

BETWEEN
BRENDAN MILES ROSS and COLLEEN ANNE ROSS

Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing: 12 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 & others (Intervening)

Judgment:

20 September 2021

JUDGMENT OF OSBORNE J

[notification 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 2452 [20 September 2021]

TABLE OF CONTENTS

Introduction [1]

“Representative proceedings”/ “Representative claims” [3]

The litigation to date [4]

The plaintiffs’ litigation funding [11]

The complication of the (Southern Response) settlement Package [12]

Notification orders [17]

The need for notification orders — the role of the Court [17]

Comparative jurisdictions [20]

Purpose of the class members notice [23]

“Ownership” of the class members notice [27]

Delivery of the class members notice economically and efficiently [30]

Style of the class members notice [33]

Content of the class members notice [37]

The class members notice — the parties’ positions [44]

Subject-matter on which the parties agree [44]

Other subject-matter sought by the Rosses [47]

1. Rosses’ opposed proposals [47]
2. Detail of funding arrangements between Claims Funding Australia Pty Ltd

and plaintiffs/class members liability for costs [49]

Other subject-matter sought by Southern Response [55]

The format of the class members notice [57]

Content of the class members notice [60]

The heading (“Ownership” of the class members notice) [60]

Introductory comment [63]

Banner explanation [64]

Section 1 — Why is this notice important? [65]

Section 2 — What is a representative proceeding? [67]

Section 3 — What is this representative proceeding about? [70]

Section 4 — Are you a class member? [73]

Section 5 — What is “opt out?” [74]

Sections 6 and 7: [75]

Section 6 — How is the representative proceeding being funded? [75]

Section 7 — Common fund order or costs equalisation order will be sought?            [75]
Sections 8, 9 and 10:  [109]
Section 8 — Liability for legal costs  [109]
Section 9 — What will happen if you choose to stay in the proceeding?                  [109]
Section 10 — What will happen if you opt out?  [109]
Section 11 — Southern Response Settlement Package  [121]
Section 12 — What class members need to do?  [134]
Section 13 — Where can you obtain copies of relevant documents?  [139]

The approved form of the class members notice [141]

Opting out [143]

The opt out form [143]

The opt out deadline [145]

Timing of the class members notice and communication of the Package [155]

Communication of the class members notice [158] Advertisement of the class members notice through newspapers [158] Advertisement of the class members…

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.

Keep reading for free

Create a free CaseChat account to read Ross v Southern Response Earthquake Services Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 2452
Decision Date: 20 September 2021

CaseChat Overview and Summary

In Ross v Southern Response Earthquake Services Ltd, the plaintiffs, Brendan and Colleen Ross, brought a representative claim against Southern Response Earthquake Services Ltd. The Rosses alleged that Southern Response misled them into settling their insurance claim for earthquake damage for less than the full cost, leading them to pursue a representative claim on behalf of others in similar situations. The case involved interlocutory issues regarding the basis on which the Rosses would pursue their representative claim, which was ultimately settled on an opt-out basis. The primary focus of this judgment is the court's approval of notification orders that define the content, form, and distribution of the class members notice, which informs potential class members of their rights and the process for opting out of the proceeding.

The court had to balance the need for clarity and simplicity in the class members notice against the requirement to provide sufficient information for class members to make informed decisions. The court considered comparative jurisdictions and the purpose of the class members notice, which is to ensure that class members can make an informed decision concerning their rights. The court approved a class members notice that includes explanations of the nature of the proceeding, the consequences of opting out or staying in, and the funding arrangements. The notice also addresses the potential for a common fund order or costs equalisation order and the implications of Southern Response's settlement package.

The court emphasised the importance of providing adequate information about funding arrangements and potential cost sharing, while also avoiding complexity and confusion. The approved notice includes a banner explanation, a section on the opt-out deadline, and detailed sections on the nature of the proceeding, funding arrangements, and the consequences of staying in or opting out. The court also addressed the method and timing of distributing the notice and the opt-out form, ensuring that class members receive the information promptly and effectively.

In conclusion, the court issued detailed orders regarding the form and content of the class members notice, the method of distribution, and the timing of the opt-out period. The court aimed to ensure that class members receive clear, comprehensive, and accessible information to make informed decisions about their participation in the representative proceeding.

Orders