IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-643
[2021] NZHC 3106
BETWEEN KARLIE MARGARET SMITH
Plaintiff/First Counterclaim Defendant
AND
CLAIMS RESOLUTION SERVICE LTD
First Defendant/Counterclaim Plaintiff
AND
GRANT SHAND BARRISTERS AND SOLICITORS
Second Defendant
AND
SHARON MARGARET SMITH
Second Counterclaim Defendant
Counsel: G A Cameron and R J Lynn for Plaintiff/First Counterclaim Defendant and for Second Counterclaim Defendant
A R B Barker QC and G P Davis for First Defendant/Counterclaim PlaintiffA B Darroch and B A Mathers for Second Defendant
Judgment:
18 November 2021
(Determined on the papers)
JUDGMENT OF OSBORNE J
[Freezing order]
This judgment was delivered by me on 18 November 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
SMITH v CLAIMS RESOLUTION SERVICE LTD [2021] NZHC 3106 [18 November 2021]
Introduction
[1] Claims Resolution Service Ltd (CRS) is the first defendant and counterclaim plaintiff in this proceeding. CRS applies for a freezing order restraining the plaintiff/first counterclaim defendant, Karlie Smith, from dealing with her residential property or, alternatively, a portion of the proceeds of sale.
[2] The application is made without notice upon the basis that requiring CRS to proceed on notice would cause CRS undue delay or prejudice.
This proceeding
[3] The background to this proceeding lies in damage suffered by Ms Smith’s home in the Canterbury Earthquake Sequence. She entered into a contract with CRS for claims resolution funding and advocacy services and with the second defendant for legal representation in relation to a civil proceeding against her insurer.
[4] Ms Smith asserts in this proceeding against the two defendants that she settled her insurance claim for significantly less than the sum the defendants had identified and advocated to be the full and true value of those claims. She alleges breaches of fiduciary duty by both CRS and the second defendant. She also asserts that her contract with CRS was an unconscionable bargain. She seeks declarations to that effect. She also seeks declarations that the contracts are void and/or that it would be inequitable for the defendants to recover money under those contracts.
[5] The defendants each filed statements of defence. CRS included a counterclaim for monies it alleged are due and owing under its contract with the plaintiff, Ms Smith, (and the second counterclaim defendant, Sharon Smith).
[6] The counterclaim defendants deny liability by reason of the matters referred to at [4] above.
[7] In February 2019, Ms Smith was granted leave for this proceeding to proceed as a representative claim on an opt-in basis.1
[8] Subsequently, steps have been taken to advance procedural matters concerning the opt-in process, culminating in the Court’s approval of the opt-in consent notice in July this year.
[9] At that time, it became apparent that Ms Smith no longer wished to continue the proceeding as representative plaintiff and to date no one has been substituted as plaintiff. (An opposed application in that regard has yet to be heard).
[10]…
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