Smith v Claims Resolution Service Ltd - [2019] NZHC 2738

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000643

[2019] NZHC 2738

BETWEEN
KARLIE MARGARET SMITH

Plaintiff

AND

CLAIMS RESOLUTION SERVICE LIMITED

First Defendant

GRANT SHAND BARRISTERS AND SOLICITORS

Second Defendants

Hearing: Determined on the papers

Counsel:

M S Smith for Plaintiff

ARB Barker QC for First Defendant A B Darroch for Second Defendant

Judgment:

25 October 2019

JUDGMENT OF GENDALL J

This judgment was delivered by me on 25 October 2019 at 2:30 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 25 October 2019

SMITH v CLAIMS RESOLUTION SERVICE LTD [2019] NZHC 2738 [25 October 2019]

Introduction

[1] On 12 February 2019 this court granted the plaintiff leave to bring a representative action against the first defendant Claims Resolution Service Limited (CRS) and the second defendants Grant Shand Barristers and Solicitors (Shand Solicitors). On 9 May 2019, the terms of that representative order were set out.

[2] CRS and Shand Solicitors seek leave of this court to appeal the 12 February 2019 and 9 May 2019 judgments to the Court of Appeal. They also seek an extension of time as the leave application was filed one day late.

The law

[3] Section 56 of the Senior Courts Act 2016 provides for jurisdiction for the Court of Appeal to hear appeals. It provides:

56 Jurisdiction

(1)The Court of Appeal may hear and determine appeals—

(a)from a judgment, decree, or order of the High Court:

(b)under the Criminal Procedure Act 2011:

(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.

(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.

(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 Appeal against any order or decision of the High Court—

(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)granting summary judgment.

(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.

(6)If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the…

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: [2019] NZHC 2738
Decision Date: 25 October 2019

CaseChat Overview and Summary

In Smith v Claims Resolution Service Ltd, the plaintiff, Karlie Margaret Smith, sought leave to bring a representative action against the first defendant, Claims Resolution Service Limited (CRS), and the second defendants, Grant Shand Barristers and Solicitors (Shand Solicitors). CRS and Shand Solicitors sought leave to appeal the High Court's judgments granting the plaintiff leave to bring a representative action, as well as an extension of time for filing their leave application, which was one day late. The primary legal issues were whether leave to appeal should be granted under Section 56 of the Senior Courts Act 2016, and whether the extension of time for filing the leave application should be allowed.

The court examined the criteria for granting leave to appeal under Section 56(3) of the Act, considering the nature of the interlocutory decision, the potential for further delay, and the importance of the issue to be determined. The court also reviewed the factors relevant to granting an extension of time for filing the leave application, including the reason for the delay and any prejudice caused to the plaintiff. In deciding whether to grant leave to appeal, the court balanced the potential merits of the appeal against the cost and delay of the appellate process.

After considering the submissions of the parties, the court concluded that the appeal raised issues of significant importance to the defendants, including the potential for a common defence among the members of the representative group and the impact of the representative order on the defendants' business. The court also noted that the appeal involved complex issues of fact and law that were better dealt with separately. The court granted leave to appeal, allowing the defendants to challenge the High Court's judgments in the Court of Appeal. The plaintiff was also granted leave to cross-appeal certain decisions made in the earlier judgments.

The court's judgment highlights the importance of balancing the need for finality in litigation with the potential merits of an appeal, particularly in cases involving representative actions and interlocutory decisions. The court also emphasised the need to consider the proportionality of the appeal process and the potential for delay and cost in granting leave to appeal.

Orders