Smith v Claims Resolution Service Ltd
[2019] NZHC 127
•12 February 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000643
[2019] NZHC 127
BETWEEN KARLIE MARGARET SMITH
Plaintiff
AND
CLAIMS RESOLUTION SERVICE LIMITED
First Defendant
GRANT SHAND BARRISTERS AND SOLICITORS
Second Defendants
Hearing: 17 and 18 December 2018 Counsel:
A S Butler and E J Flaszynski for Plaintiff
A Barker QC and G Davis for First Defendant A B Darroch for Second Defendants
Judgment:
12 February 2019
JUDGMENT OF GENDALL J
SMITH v CLAIMS RESOLUTION SERVICE LIMITED [2019] NZHC 127 [12 February 2019]
Introduction
[1] The plaintiff, Karlie Margaret Smith (Ms Smith), as a former client of the first defendant Claims Resolution Service Limited (CRS) and the second defendants Grant Shand Barristers and Solicitors (Shand Solicitors) sues these defendants in what is stated to be a representative proceeding brought on her behalf and on behalf of a group of others. As the owner of a home damaged in the Canterbury earthquake sequence of 2010 – 2011, Ms Smith had engaged CRS to pursue her unresolved earthquake claim against her insurer. She says CRS in turn engaged Shand Solicitors as her lawyers for this claim. Ms Smith contends that CRS, Shand Solicitors and other closely held companies related to CRS and its principal, all had an undisclosed joint venture arrangement. Ms Smith advances claims against CRS and Shand Solicitors alleging breach of fiduciary duty and unconscionable bargain with respect to the joint venture and other arrangements pursuant to which what were represented to be independent professional services were allegedly provided in breach of obligations owed to Ms Smith regarding her earthquake insurance claim.
[2] Ms Smith, in her present application before the Court, seeks leave to bring this proceeding as a representative action under r 4.24 High Court Rules, along with associated orders which include directions for the further conduct of the proceeding. Ms Smith maintains this is a representative proceeding which she seeks to advance for the benefit of a large number of former clients of CRS and Shand Solicitors. She describes these people as vulnerable and as a group who, but for this representative vehicle, would have no realistic prospect of proceeding individually.
[3]This leave application is opposed by the first and second defendants.
Background
[4] The Canterbury earthquake sequence caused major damage to buildings throughout Christchurch and the region. This resulted in a great number of home owners needing assistance resolving their claims with both their insurance providers and the Earthquake Commission (EQC). Those in this situation often faced very difficult financial and living situations, especially as time passed. For a significant number of people, this caused much stress.
[5] In August 2012, CRS was incorporated. Bryan Douglas Staples (Mr Staples) was its principal, having set up the company and been its sole director, CEO and manager. Shand Solicitors, headed by Grant Donald Richard Shand (Mr Shand), was established that same month.
[6] From an early stage CRS and Shand Solicitors (the defendants) began working closely together and, as I have noted, Ms Smith alleges they and others operated under an undisclosed joint venture arrangement. CRS offered a widely-advertised “no win no fee” funding proposition to homeowners who contracted CRS and, through CRS, Shand Solicitors to assist them in resolving their outstanding earthquake insurance claims.
[7] This offer was attractive to many financially stretched and emotionally drained homeowners. The Earthquake List (operated by this Court to deal with the large number of Canterbury earthquake sequence insurance claims) soon became dominated with proceedings where Shand Solicitors were acting.1
[8] Once a client had contracted with the defendants, their insurance claim appears to have been advanced in a number of common ways. Shand Solicitors would provide legal representation, costings would be sourced from a quantity surveyor said to be intimately connected to the defendants, Stephen Betts (Mr Betts), Earthquake Services Ltd (ESL) would carry out damage assessments, and CRS would fund the proceeding on a commission basis. One effect of this approach was to minimise the ongoing cashflow obligations of CRS as a funder, because other parties who it is said were closely connected generally were not paid until settlement of the claim.
[9] Ms Smith alleges the following features of the arrangement in her Statement of Claim:
1 Indeed, in a decision of this Court at the time, Pearce v Tower Insurance [2014] NZHC 2849, Wylie J said at Note 1:
Mr Shand acts for the plaintiffs in approximately 70 percent of the cases filed on the earthquake list. Some 360 cases had been filed as at the end of September 2014. Approximately 240 remain active. Most, if not all, of the cases filed by Mr Shand rely on a costing analysis prepared by Mr Betts and a damage report prepared by Earthquake Services Ltd.
(a)Companies utilised by the defendants were closely associated with and controlled by Mr Staples and produced assessments and reports that uniformly provided high estimates of claim value. While Mr Staples has suggested in his affidavit that these high remediation cost estimates were merely an “initial assessment” and that clients knew these sums would be revised downwards over time, the evidence in the application is that is not what clients were told or believed.
(b)The defendants failed to advise clients of the pre-existing relationship between Mr Staples, Mr Shand and Mr Betts and the utilisation of companies related to Mr Staples. They also failed to advise clients of the fee paying arrangements they had agreed between themselves, the potential conflicts of interest given the arrangements that would advance the interests of CRS and Shand Solicitors, and that clients could use lawyers other than Shand Solicitors, who was engaged by CRS rather than the clients.
(c)Shand Solicitors failed to raise any issue or concerns with CRS contracted clients about the terms of the contract between the claimant and CRS.
(d)The interests of CRS, Mr Staples and Shand Solicitors were preferred over the interests of Ms Smith and Group members. In addition, the settlements negotiated by the defendants fell substantially below what had been represented to the client by them as the full and true insurance value. The clients faced strong pressure to settle and, subsequent to settlement, clients were invoiced by CRS for sums significantly greater than expected.
The application
[10]In her present leave application, Ms Smith seeks the following orders:
(a)That leave to bring this proceeding as a representative action under r
4.24 be granted;
(b)That a period of four months from the making of that order be set aside for any further claimants to opt in to the representative action;
(c)That a form of communication is approved by the Court that provides information about the proceedings to potential claimants; and
(d)That directions be given for the efficient and effective progress of this proceeding.
[11] Ms Smith suggests in her application that each of the intended claimants to be represented (the Group members) have the following characteristics:
(a)They owned homes that were damaged in the Canterbury earthquake sequence from 2010 to 2011;
(b)They contracted with CRS for claims resolution funding and advocacy services in respect of insurance claims against EQC and/or an insurer arising from the earthquakes;
(c)They obtained what was described as an independent damages assessment from ESL, and based on that damage assessment a costing for the remediation of their home by the quantity surveyor Mr Betts;
(d)They were represented by Shand Solicitors, who was engaged by CRS to act for them and to commence and prosecute a civil proceeding for them; and
(e)They settled their insurance claims for significantly less than the sum that CRS and Shand Solicitors had identified and advocated to be the full and true value of their insurance claims.
[12] Affidavits have been filed in support of this application and the proceeding by Ms Smith, Kathryn Patricia Robinson (Ms Robinson), Jamie Roberts (Mr Roberts), Toni Teresa Elliott (Ms Elliott) and Lucia Renate Pfisterer (Ms Pfisterer). A general claim is made that none of the Group members could individually afford to bring the
proceedings proposed. Ms Smith, Ms Robinson, Mr Roberts and Ms Elliot state in these affidavits that this is the case for each of them.
Initial admissibility issues
[13] At the outset of the hearing before me, counsel for the parties advised that an issue as to admissibility of certain affidavits arose. These affidavits, said to be in reply, were from the plaintiffs’ witnesses Ms Pfisterer and Ms Elliott (the questioned affidavits). Without further oral submission, the parties agreed that this issue was to be left to me to decide as part of this judgment. Written material was filed which I have now considered.
[14] Overall, I find and rule that the questioned affidavits are inadmissible here. They are not from the original deponents of affidavits advanced by the plaintiffs in support of this application and it is arguable they are not strictly in reply.
[15] In addition, only a relatively brief opportunity was provided to the defendants to reply to this material. Mr Staples had endeavoured in his 11 December 2018 affidavit (filed on 14 December 2018) to do so in necessarily a brief and hurried manner. In my view, this was not adequate. I repeat my ruling that the questioned affidavits are inadmissible in these proceedings, as is Mr Staples’ affidavit purporting to be in response to this “reply” evidence. In any event, as I see the position, all these affidavits make little difference to the overall outcome of the present application, an outcome which will become apparent as this judgment unfolds. The evidence of Ms Smith’s other witnesses, as I note below, is sufficient for present purposes.
[16] The defendants have also contested other evidence provided here on behalf of Ms Smith by Cameron James Sherwood (Mr Sherwood) in an affidavit of 19 September 2018. Mr Sherwood was a solicitor employed at relevant times by GCA Lawyers, who act for the plaintiff and are the solicitors on the record in this proceeding. In his affidavit, Mr Sherwood details his view about the “scheme” he alleges was operated by the defendants here. He says this is based on his experience working with 17 clients of GCA Lawyers who had each been represented earlier by the defendants in their respective earthquake insurance claims.
[17] The defendants argue that Mr Sherwood’s evidence is hearsay as it is based on what his clients have told him. This information could be provided by the clients themselves. The defendants also submit that Mr Sherwood’s evidence attempts to provide expert evidence that he is not qualified to provide.
[18] I accept that there are issues with Mr Sherwood’s affidavit, although I do not make a final ruling on the submissions of the defendants. Rather I consider that, for present purposes, there is sufficient other evidence before me relating to Ms Smith’s case, so I therefore place Mr Sherwood’s affidavit to one side and do not consider it here.
Representative proceedings
Legal principles
[19] Rule 4.24 empowers the High Court to allow a plaintiff to bring representative proceedings on behalf of others who have the same interest in the subject matter of the proceeding. The rule provides:
4.24Persons having same interest
One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding—
(a)with the consent of the other persons who have the same interest; or
(b)as directed by the court on an application made by a party or intending party to the proceeding.
[20] As it seems consent may not have been sought or provided for some potential claimants in terms of r 4.24(a), Ms Smith requires leave of the Court under r 4.24(b) to proceed with this as a representative action.
[21] The key issue under this rule is what constitutes “the same interest in the subject matter of a proceeding”. In Credit Suisse Private Equity LLC v Houghton, Elias CJ and Anderson J said that this question is to be assessed purposively to allow
the representative proceeding to be a “flexible tool of convenience in the administration of justice”.2
[22] The relevant principles have recently been summarised by the Court of Appeal as follows:3
(a)The rule should be applied to serve the interests of expedition and judicial economy, a key underlying reason for its existence being efficiency. A single determination of issues that are common to members of a class of claimants reduces costs, eliminates duplication of effort and avoids the risk of inconsistent findings.
(b)Access to justice is also an important consideration. Representative actions make affordable otherwise unaffordable claims that would be beyond the means of any individual claimant. Further, they deter potential wrongdoers by disabusing them of the assumption that minor but widespread harm will not result in litigation.
(c)Under the rule, the test is whether the parties to be represented have the same interest in the proceeding as the named parties.
(d)The words ‘same interest’ extend to a significant common interest in the resolution of any question of law or fact arising in the proceeding.
(e)A representative order can be made notwithstanding that it relates only to some of the issues in the claim. It is not necessary that the common question make a complete resolution of the case, or even liability, possible.
(f)It must be for the benefit of the other members of the class that the plaintiff is able to sue in a representative capacity.
(g)The court should take a liberal and flexible approach in determining whether there is a common interest.
(h)The requisite commonality of interest is not a high threshold and the court should be wary of looking for impediments to the representative action rather than being facilitative of it.
(i)A representative action should not be allowed in circumstances that would deprive a defendant of a defence it could have relied on in a separate proceeding against one or more members of the class, or conversely allow a member of the class to succeed where they would not have succeeded had they brought an individual claim.
2 Credit Suisse Private Equity LLC v Houghton [2014] NZSC 37, [2014] 1 NZLR 541 at [2] citing
John v Rees [1970] Ch 345 (Ch) at 370.
3 Cridge v Studorp Ltd [2017] NZCA 376 at [11].
The proposed Group characteristics
[23] The correct approach is to focus on what unites the class, not how it may be divided.4 Not all issues in the case need to be common issues.
[24] I consider that in the present case the people sharing the characteristics proposed by Ms Smith are easily identifiable as such. In most instances, as Ms Smith submits, the Group members will be able to be identified with certainty from four principal documents that are commonly held by the defendants – their CRS contract, the independent damage assessment report they obtained from ESL, the statement of claim filed by Shand Solicitors for them (which invariably attaches a costing from Mr Betts), and CRS’s invoice following settlement of the claim.
Pleaded loss
[25] As part of his argument opposing the present application, Mr Barker QC, for CRS, submitted that Ms Smith has not sufficiently explained how she has suffered loss.
[26] Mr Butler, for Ms Smith, claims Mr Barker is wrong and that the loss has been identified here. In her statement of claim, Ms Smith alleges specifically that CRS’s breach of its fiduciary duty, the first cause of action, has caused the Group members to suffer the following loss and damage:
a.Payments made and/or liabilities said by CRS to be incurred, by the plaintiff and Group members to CRS for costs and commissions that are claimed by CRS, Staples closely held companies and Shand Solicitors.
b.Loss of an opportunity to engage independent experts and solicitors and, through that, to achieve a more timely and/or financially better settlement of their insurance claims than with CRS and Shand Solicitors.
c.Mental distress consequent upon the manner in which CRS has acted.
(Full particulars of Group members’ loss or damage will be provided after determination of common questions or otherwise as the Court may direct.)
4 Credit Suisse Private Equity LLC v Houghton, above n 2, at [55] – [56] and [61].
The statement of claim goes on to outline that:
…the plaintiff claims on her own behalf and on behalf of Group members:
a.Declarations that CRS has acted in breach of its fiduciary duties…
b.A declaration that as a result of CRS’s breaches of fiduciary duty the contracts that the plaintiff and Group members have signed with CRS are void, and that it would be inequitable for CRS to retain and/or to recover any money from the plaintiff and Group members in reliance on CRS’s contracts with them.
c.General breaches of $10,000 each for the plaintiff and Group members, for CRS’ breaches of fiduciary duty.
d.Specific damages for the plaintiff and Group members, for CRS’s breaches of fiduciary duty, in amounts subsequently to be particularised.
…
[27] Ms Smith makes a similar claim and prayer for relief with regard to Shand Solicitors’ alleged breach of fiduciary duty, the third cause of action.
[28] The authors of the text Equity and Trusts in New Zealand state that the effect of a failure by a fiduciary to disclose a personal interest in a transaction is the vitiation of that transaction (at the beneficiary’s option), however fair it may have been in all other respects.5
[29] A breach of fiduciary duties also means the fiduciary forfeits his or her right to remuneration, even if the beneficiary has had the benefit of the services and has suffered no loss.6 This is in addition to other remedies such as an account of profits. For example, in the Supreme Court decision Stevens v Premium Real Estate involving breach by real estate agents of their fiduciary duty to their land-owner principals, the agent’s fees and other charges had to be repaid while the beneficiaries also received compensation for their loss.7
5 A Butler (ed) Equity and Trusts in New Zealand (2nd ed, 2009, Thomson Reuters, Wellington) at [17.6.3]. See Blair v Martin [1929] NZLR 225 at 229.
6 Butler, above n 5, at [17.6.1].
7 Stevens v Premium Real Estate Ltd [2009] NZSC 15, [2009] 2 NZLR 384.
[30] In all, I consider that Ms Smith’s loss has been sufficiently identified. While a particular dollar amount for each Group member will need particularisation later, that is not a reason to refuse the present application.
Appropriateness of representative proceedings
[31] The common questions of fact or law that arise out of the claims being advanced by Ms Smith here are:
(a)Whether CRS owed fiduciary duties to the Group members;
(b)The scope and content of CRS’s fiduciary duties;
(c)Whether CRS’s fiduciary duties were breached;
(d)Whether their CRS contract was an unconscionable bargain;
(e)Whether Shand Solicitors owed fiduciary duties to them;
(f)The scope and content of Shand Solicitors’ fiduciary duties;
(g)Whether those fiduciary duties were breached; and
(h)Whether Ms Smith and Group members are entitled to the relief claimed.
[32] It is not contested that Shand Solicitors owed the Group members a fiduciary duty. However, the Group members will need to prove CRS also owed them such a duty as their litigation arranger and funder. This is contested by CRS. Mr Barker notes that litigation funders have been seen in the past as not being fiduciaries. Mr Butler in response contends, however, that CRS’s role here was not simply that of a litigation funder. It is contended that CRS handled the claims of its clients and thus had a lot more control over their affairs than a genuine litigation funder. On the basis of the material presently before the Court I accept that such a contention is certainly arguable. While a provisional appraisal of the merits of the proposed claims is
necessary before leave is granted, this requires no more than ensuring the claims, on their face, disclose an arguable case on the facts as pleaded.8 That reasonably low test, in my judgment, is met here.
[33] Given the similar circumstances in which the Group members entered into a relationship with CRS, in my view determining the matter in a representative proceeding would avoid duplication too and be more expedient. I accept that there may be factual differences in the way each individual Group member entered into their contracts with the defendants. However, the overall similarity means that there are common ingredients in the cause of action of each member of the represented group.9 The matters are sufficiently common to benefit from a representative action.
[34] Similarly, much of the basis on which an alleged unconscionable bargain is made out will be common to the Group members. Despite each case having its own particular factual circumstances, the legal issues are likely to be the same.
[35] The present proceeding concerns an alleged pattern of behaviour by the defendants and a common thread. This requires evidence of the experience of a large group of claimants. As I see the position, it would be difficult for an individual claimant to adduce such evidence, as they would struggle to show it was relevant to their particular claims. Therefore, there is a benefit to each complainant in having their claims heard together. There is a risk that, if there was a joint venture operating improperly with possible actionable consequences, having the claims brought separately might mask its existence.
[36] A similar situation was dealt with in Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group.10 There, the claimants sought leave to bring a representative action against their insurer, alleging a strategy on the insurer’s part. This could only be proved by the experiences of multiple claimants. The Court of Appeal noted that:11
8 Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group
[2017] NZCA 489; [2018] 2 NZLR 312 at [16] – [17].
9 Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229; [1973] All ER 507.
10 Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group,
above n 8.
11 At [45].
It may be that individual claimants will then need to show that aspects of this strategy were applied to their claim. But that is a far less onerous task than each being required to prove the strategy. They will also, as Southern Response contends, have to lay out the basis for their general damages claim. At least the portion of general damages based upon delay will need to be assessed on a claimant-by-claimant basis. Again, the need for aspects of the claim to be determined individually is not a bar to the use of the r 4.24 procedure. We accept however that it is relevant to the assessment of issues of efficiency and efficacy.
[37] I consider that the commonality in the way that (a) Group members entered into a contractual relationship with CRS and Shand Solicitors; and (b) the subsequent way the defendants are alleged to have operated in that relationship, mean that the factors considered to establish these two causes of action will be largely similar. An affirmative answer can be expected to benefit all Group members. As the Supreme Court has noted, I must focus on what unites the Group members, not what divides them.12
[38] Ms Smith and some of her other supporting deponents indicate that they would not be able to afford to bring disparate proceedings against the defendants. The Court of Appeal has emphasised that access to justice is an important consideration.13 Representative proceedings would ensure that all the Group members are able to have their claims against the defendants put to the test and to gain any relief they are found to be entitled to. It also serves the wider public policy ends of deterring the alleged wrongdoing in cases such as this and thus ensuring that minor but widespread harm will result in litigation.
[39] Furthermore, in my view, there is a good argument here that it is more efficient and cost effective from a case management perspective to have all the Group members represented by one proceeding rather than filling up the Court’s time with discrete proceedings.14 This also extends to steps in the proceeding such as discovery, where all Group members would be wanting much of the same information from the
12 Credit Suisse Private Equity LLC v Houghton, above n 2, at [55] – [56] and [61].
13 Cridge v Studorp, above n 3, at [22](b).
14 On this aspect, I note the relevant extra judicial comments of Miller J encouraging the use of representative actions to determine earthquake insurance disputes in Reflections on the Earthquake Litigation, a paper presented to the New Zealand Insurance Law Association Conference, Wellington, September 2014, at [9].
defendants.15 The avoidance of clogging courts with a multiplicity of proceedings is the very purpose which representative actions seek to promote.
[40] I am guided in these findings by the overarching objective of the High Court Rules which is to secure the just, speedy and inexpensive determination of any proceeding.16 The liberal application of r 4.24 is well-established, no doubt being seen as necessary for the scope of representative action rules to continue to adapt to ensure that the overall objective of the Rules as outlined in r 1.2 is achieved.17
[41] In my view too, the interests of judicial economy here also support allowing a representative action. Such will allow for the determination of the common issues I set out at [31] in a way which eliminates duplication of effort and avoids the risk of inconsistent findings. Such an action will enable Ms Smith and her supporting deponents to afford to bring proceedings against the defendants in a cost-effective manner. This clearly supports access to justice.
[42] In considering all these factors, and on the basis too that it is in the interests of efficiency and the general administration of justice, I find that this proceeding should be conducted as a representative action.
Case Management
“Opt in” period
[43] Ms Smith in her application seeks a direction that the representative action be “opt in” and that four months be allowed for potential Group members to choose to enter into the proceeding. CRS and Shand Solicitors seem to accept that if leave is to be granted here, “opt in” is appropriate but they submit that a two month period is sufficient. I disagree however. I consider four months to be a reasonable period to allow all potential Group members to be informed about the proceeding, and to have a reasonable period of reflection before deciding whether or not to join. This is similar
15 As was noted in Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group, above n 8, at [52].
16 High Court Rules, r 1.2.
17 Credit Suisse Private Equity LLC v Houghton, above n 2 at [130], and see McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [HR4.24.01], referencing Taspac Oysters Ltd v James Hardie & Co Pty Ltd [1990] 1 NZLR 442 at 447.
to the periods imposed in Cridge v Studorp Ltd18 and Strathboss Kiwifruit Ltd v Attorney General19 which were five months and three months respectively. A four month period will not unduly prolong the proceedings. The commencement date for that four month period is to be determined subsequently as I outline below.
Further terms
[44] As I have noted above, in her leave application Ms Smith also sought directions for the further conduct of this proceeding on the basis that she might be successful in having it determined to be a representative action. At the hearing before me there was insufficient time to properly hear argument on and to consider these further directions. They were to include issues such as a consideration of the Court approved form of written communication/notice of the proceeding to potential Group members and the mechanics for its distribution, possible provision of security for costs (which had formed part of a suggested offer from Ms Smith) and ongoing case management issues including for example the proper scope of discovery, and the appropriateness of identifying issues to be determined as a possible separate question under the r 10.15 procedure.
[45] Some material is before the Court relating to these issues but directions are to follow allowing the parties time to file memoranda fully addressing these questions. Those memoranda are then to be referred to me for a final decision which will then be issued to deal with these specific directions.
Costs
[46] Again, at the hearing before me, there was insufficient time to fully address the issue of costs. Ms Smith has succeeded in her leave application and therefore is entitled to an award of costs in the usual way. A further direction is to follow, however, also allowing counsel an opportunity to file memoranda on costs which are to be referred to me for a final costs decision to issue.
18 Cridge v Studorp Ltd, above n 3.
19 Strathboss Kiwifruit Ltd v Attorney-General [2015] NZHC 1596.
Orders
[47] For all the reasons I have outlined above, leave is now granted under r 4.24 for this proceeding to proceed as a representative action.
[48] The matter will operate as an “opt in” proceeding and potential Group members will have four months to be informed about it and to decide whether to join.
[49] The starting point of the “opt in” period, and the effective date from which this order and the further directions for the conduct of this proceeding are to take effect, is to be determined in the subsequent decision I will issue in this proceeding as I outline below.
Directions
[50]As noted at paras [44] and [45] above, the following directions are now made:
(a)Within 15 working days of today the plaintiff Ms Smith is to file and serve any memorandum she may wish addressing as directions for the further conduct of this proceeding and otherwise those matters noted at para [44] above together with any further submissions she may wish to advance on issues of costs here.
(b)Within a further 15 working days of that date the defendants respectively are to file and serve any memoranda they may wish in response addressing as directions for the further conduct of this proceeding and otherwise those matters noted at para [44] above together with any further submissions they respectively may wish to advance in response on issues of costs here.
(c)Within a further five working days of that date the plaintiff Ms Smith may file and serve any memorandum she may wish which is strictly in reply.
(d)All those memoranda are then to be referred to me and I will decide directions for the further conduct of this proceeding, including specifically those matters noted in paras [44] and [45] above and the costs question, on the basis of the memoranda filed and all the other appropriate material presently before the Court.
...................................................
Gendall J
Solicitors:
GCA Lawyers, Christchurch
Canterbury Legal, Christchurch Darroch Forrest, Wellington
Copy to:
Andrew Butler, Barrister, Wellington Matthew Smith, Barrister, Wellington Andrew Barker QC, Barrister, Auckland
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