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Smith v Claims Resolution Service Ltd

Smith v Claims Resolution Service Ltd

Case [2021] NZHC 3561 20 December 2021

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000643

[2021] NZHC 3561

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

SHARON MARGARET SMITH

Second Counterclaim Defendant

Hearing: 2 December 2021

Appearances:

K M Smith, self-represented Plaintiff/First Counterclaim Defendant

A R B Barker QC and G P Davis for First Defendant/Counterclaim Plaintiff
A B Darroch for Second Defendant
M S Smith and R J Lynn for C and S Harris (in relation to their application to be substituted as representative plaintiffs)
No appearance for Second Counterclaim Defendant

Judgment:

20 December 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 20 December 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SMITH v CLAIMS RESOLUTION SERVICE LTD [2021] NZHC 3561 [20 December 2021]

[1] The plaintiff, Karlie Smith (Ms Smith) obtained a direction under r 4.24 of the High Court Rules 2016 to bring her claim against the defendants, (Claims Resolution Service Ltd (CRS) and Grant Shand Barristers and Solicitors (Shand) respectively) as a representative proceeding.1 She no longer wishes to be the representative plaintiff. The proceeding has not advanced for some months while Ms Smith’s former lawyers, GCA Lawyers, identified someone prepared to be substituted as the representative plaintiff.

[2] Prospective representative plaintiffs have now been found and they apply for substitution. However, they require as a condition of their appointment that the Court grants a stay pending a decision of the Court of Appeal in Pfisterer v Claim Resolution Service Ltd & Grant Shand Barristers & Solicitors (CA355/2021) (the Pfisterer appeal) without which they will not be able to obtain funding for this proceeding.

[3] CRS and Shand oppose the substitution application. Further, if notwithstanding their opposition a substitution order is made, they say the substituted representative plaintiffs should be responsible for the costs of the proceeding to date. If no substitution order is made, CRS and Shand apply to revoke the representation order.

[4]This judgment, then, concerns applications:

(a)by Constantine and Sylvia Harris (Mr and Mrs Harris) for orders they be substituted as the representative plaintiffs in this proceeding on the condition that the proceeding is stayed pending the outcome of the Pfisterer appeal (the substitution application); and

(b)by CRS and Shand for an order revoking the representation order made on 12 February 2019 directing Ms Smith to bring this proceeding as a representative proceeding (the revocation application).

Smith v Claims Resolution Service Ltd [2019] NZHC 127 and

Claims Resolution Service Ltd v Smith [2020] NZCA 664.

[5] Ms Smith appeared at the hearing. She is now representing herself. GCA Lawyers have been granted leave to withdraw as her solicitors on the record. Ms Smith did not directly support or oppose either application. She simply wants this proceeding behind her so that she can get on with her life. GCA Lawyers are…

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.

Continue reading Smith v Claims Resolution Service Ltd

Details

AGLC: Smith v Claims Resolution Service Ltd [2021] NZHC 3561
Case: [2021] NZHC 3561
Decision Date: 20 December 2021

CaseChat Overview and Summary

Karlie Margaret Smith brought a proceeding as a representative of a group of persons against Claims Resolution Service Limited and Grant Shand Barristers and Solicitors. The proceeding was brought on the basis that the defendants had breached fiduciary duties owed to Ms Smith and that the contract between Ms Smith and Claims Resolution Service Ltd was an unconscionable bargain. The proceeding was approved to proceed as a representative proceeding under rule 4.24 of the High Court Rules. The Court was asked to decide two applications. The first was an application by Constantine and Sylvia Harris to be substituted as the representative plaintiffs on the condition that the proceeding be stayed pending the outcome of the Pfisterer appeal. The second was an application by Claims Resolution Service Ltd and Grant Shand Barristers and Solicitors to revoke the representation order. The Court found that Mr and Mrs Harris did not qualify to be substituted as the representative plaintiffs as they required funding to be available before they would accept any personal liability for the costs of the proceeding. The Court also found that the interests of justice weighed heavily against granting the substitution order. The application for substitution was dismissed. The Court also found that the revocation application should be granted as Ms Smith did not wish to continue as the representative plaintiff and there was no one else prepared to fulfil that role. The Court made an order revoking the representation order and made provision for the persons who had given notice to opt-in to the proceeding to be joined as plaintiffs to Ms Smith’s proceeding.

Orders