Smith v Claims Resolution Service Limited - [2022] NZHC 773

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000643

[2022] NZHC 773

BETWEEN
KARLIE MARGARET SMITH

Plaintiff/First Counterclaim Defendant

AND

CLAIMS RESOLUTION SERVICE LIMITED

First Defendant/Counterclaim Plaintiff

AND

GRANT SHAND BARRISTERS AND SOLICITORS

Second Defendant

AND

CONSTANTINE HARRIS and SHARON MARGARET HARRIS

Applicants

Hearing: 24 March 2022

Appearances:

No appearance for Plaintiff/First Counterclaim Defendant A R B Barker QC and G P Davis for First Defendant/Counterclaim Plaintiff

A B Darroch and B A Mathers for Second Defendant M S Smith for C & S Harris, Applicants

Judgment:

13 April 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 13 April 2022 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SMITH v CLAIMS RESOLUTION SERVICE LTD [2022] NZHC 773 [13 April 2022]

[1] This judgment concerns an application by Mr and Mrs Harris for leave to appeal a judgment of 20 December 2021 in which I:1

(a)dismissed an application by Mr and Mrs Harris to be substituted as the representative plaintiffs in this proceeding; and

(b)revoked the representation order made in favour of the plaintiff, Ms Karlie Smith, under r 4.24 of the High Court Rules 2016 made by Gendall J on 12 February 2019, on certain terms.

[2] Specifically, the orders I made which Mr and Mrs Harris wish to challenge on appeal were:

[69]The application by Mr and Mrs Harris to be substituted as representative plaintiffs is dismissed.

…

[71]There shall be an order revoking the representation order under r 4.24 made by Gendall J on 12 February 2019 on the following basis:

(a)Leave is granted to all persons who satisfy the group criteria and have given valid and timely notice to opt-in to this proceeding to be joined as plaintiffs to Ms Smith’s continuing proceeding by filing and serving upon Ms Smith and the defendants a statement of claim by 25 February 2022.

(b)Ms Smith is required to seek leave of the Court to discontinue her proceeding. This requirement shall apply until 26 February 2022 and after 26 February 2022 also should r 15.20(3) of the High Court Rules then apply.

(c)GCA Lawyers are required to ensure that all persons who have given notice to opt-in to this proceeding receive notice of this judgment forthwith.

The relevant principles

[3]Sections 56(3) and (4) of the Senior Courts Act 2016 relevantly provide:

1 Smith v Claims Resolution Service Ltd [2021] NZHC 3561.

56 Jurisdiction
…
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
(4)Any party to any proceedings may appeal without leave to the Court of…

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: [2022] NZHC 773
Decision Date: 13 April 2022

CaseChat Overview and Summary

This case involves an application by Mr. and Mrs. Harris to appeal a decision made by the High Court of New Zealand in Christchurch Registry, dismissing their application to be substituted as representative plaintiffs in the case of Smith v. Claims Resolution Service Limited. The legal issues the court was required to decide were whether the proposed grounds of appeal were arguable, and if the circumstances warranted incurring further delay. The court found that the proposed grounds of appeal were not arguable and that the circumstances did not warrant incurring further delay. The court dismissed the application for leave to appeal and extended the stay of the orders in paragraphs [71](a) and (b) of the previous judgment to allow the Harris's to seek leave to appeal directly from the Court of Appeal. If no such application is made within 20 working days of the date of this judgment, the stay shall lapse without further order. The court also found that the defendants would likely be entitled to costs, and directed the parties to attempt to reach an agreement on the matter within 10 working days.
The final orders of the court were that the application for leave to appeal was dismissed, the stay of the orders in paragraphs [71](a) and (b) of the previous judgment was extended to allow the Harris's to seek leave to appeal directly from the Court of Appeal, and if no such application was made within 20 working days of the date of this judgment, the stay shall lapse without further order. The court also found that the defendants would likely be entitled to costs and directed the parties to attempt to reach an agreement on the matter within 10 working days. If no agreement was reached, memoranda were to be filed which were to be no longer than five pages.

Orders