Ross v Southern Response Earthquake Services Ltd - [2021] NZHC 253

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-361

[2021] NZHC 253

BETWEEN
BRENDAN MILES ROSS and COLLEEN ANNE ROSS

Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing: 15 February 2021

Appearances:

P G Skelton QC and C B Pearce for Plaintiffs (Respondents)

T C Weston QC, K-M M Paterson and E D Peers for Defendant (Applicant)

Judgment:

23 February 2021

JUDGMENT OF OSBORNE J

[on defendant’s communications] [Result]

This judgment was delivered by me on 23 February 2021 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ROSS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2021] NZHC 253 [23 February 2021]

Introduction

[1] In this proceeding, in which Brendan and Colleen Ross, are bringing (by leave) a representative claim against Southern Response Earthquake Services Ltd (Southern Response), an issue has arisen as to communications which Southern Response proposes to initiate with individual potential members of the class represented by the Rosses.

[2] I have heard Southern Response’s opposed application for directions which would permit it and its legal advisers to communicate directly with individual potential class members in relation to the settlement of their claims. I am issuing this as a results judgment, with a brief explanation as to the reasons. A full reasons judgment will follow but not in the immediate future. The Court’s intention is that counsel for the respective parties should be able to prepare for the next interlocutory hearing, scheduled for 13–14 April 2021, in the knowledge of the outcome of this present application.

[3] An important aspect of the present issue is that the Rosses elected to bring no cross-application. They themselves pursued no declaration as to any of the rights involved.

The substantive litigation

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

[5] Initially, leave to pursue a representative claim was granted by this Court on an opt in basis.1 The Court of Appeal allowed the Rosses’ appeal, substituting an opt

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

out procedure for the opt in procedure.2 The Supreme Court subsequently dismissed Southern Response’s appeal against the opt out procedure.3

[6] The judgment of the Supreme Court was delivered on 17 November 2020. Upon the request of counsel for both parties, this Court then made directions for the plaintiffs’ applications for notification orders (that is settling the form and details relating to an opt out notice) and for a common fund order. In the meantime, Southern Response filed this…

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 253
Decision Date: 23 February 2021

CaseChat Overview and Summary

In the case of Ross v Southern Response Earthquake Services Ltd, the plaintiffs, Brendan Miles Ross and Colleen Anne Ross, brought a representative claim against Southern Response Earthquake Services Limited. The plaintiffs alleged that Southern Response provided them with incomplete information about the cost of remedying earthquake damage to their home, leading to an unfavourable settlement. Southern Response applied for directions to permit it and its legal advisers to communicate directly with individual potential class members regarding the settlement of their claims. The plaintiffs opposed this application.

The court had to decide whether Southern Response could directly communicate with individual potential class members to settle their claims. The court found that the Court’s supervisory powers over representative proceedings applied equally to both plaintiffs and defendants. The court's powers extended to all aspects of communication, including form, content, and timing. In appropriate cases, the court could require a party to seek prior approval for its proposed communications. Given the context of the case, the court decided that Southern Response's application for directions could not be granted in its present form. The court emphasised that any communication between the defendant and class members should receive prior approval from the court. Southern Response was allowed to bring before the court for consideration particular draft communications and details in relation to their form and timing, either through an amended application or a fresh application.

The court refused the directions sought in the present application but allowed Southern Response to bring an amended or fresh application for approval of particular draft communications. The court reserved the costs and disbursements of the proceeding to date, with a tentative view that the defendant should pay the costs on a 2B basis. The court directed that if the parties could not resolve the question of costs and disbursements, the matter would be determined on the papers, with the plaintiffs filing and serving their memorandum first, followed by the defendant.

Orders