Turner v Sigglekow HC Christchurch CIV 2006-409-1172

[2010] NZHC 1825

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2006-409-001172

AND BETWEEN            NOELINE JANE TURNER Plaintiff

ANDCHRISTELLE JANE SIGGLEKOW First Defendant

ANDNAMEL LIMITED (IN RECEIVERSHIP AND LIQUIDATION)

Second Defendant

ANDQBE INSURANCE (INTERNATIONAL) LIMITED

Proposed Defendant

Hearing:         21 September 2010

Counsel:         P K Tucker for Plaintiff

No Appearance for First or Second Defendant
J P Forsey and SNK Mony for proposed party, QBE Insurance, as
Respondent

Judgment:      12 October 2010

JUDGMENT OF FOGARTY J

[1]      The  plaintiff  applies  to  the  Court  to  join  QBE  Insurance  (International) Limited directly as a party to these proceedings in substitution for the second defendant.

[2]      There is some doubt as to whether or not the second defendant is a party.  It was struck off the company register on 23 August 2008.   There is, however, an

TURNER  V SIGGLEKOW AND ORS HC CHCH CIV 2006-409-001172  12 October 2010

application to reinstate the company.  That is not being opposed by the defendant or QBE.   The Registrar of Companies was served with the notice on 20 September. Ten working days have elapsed.   He has not filed a notice of opposition (not unexpectedly). An order restoring Namel Limited is made.

[3]      Now it is reinstated it is common ground that under the Companies Act 1993 it is as if Namel Limited was never struck off.    The company is insolvent.  It has been in receivership and liquidation.

[4]      Mrs Turner’s statement of claim pleads a number of causes of action.  They arise out of a disastrous venture by Mrs Turner and her family to build and sell four residential units.   Namel Limited carried on business as a real estate agent.   It employed the first defendant, Ms Sigglekow.  The claim alleges that Ms Sigglekow breached her obligations to the plaintiff under the Real Estate Agents Act 1976 and her fiduciary duty to act in the best interests of the plaintiff.   It is alleged that Ms Sigglekow obtained a secret profit from the sale of Units 1 and 2 of the four unit development;  that she failed to obtain the best possible price on the sale of Units 1,

2, 3 and 4;  that she later negotiated a reduction in the agreed sale prices for Units 1,

2, 3 and 4, in breach of her duties to the plaintiff.

[5]      Arising out of these events there are four causes of action.  The first cause of action is an action for recovery of the commission paid on the sale of all four units in the sum of $23,197.  (There is some doubt as to the scope of this action as it may be restrictive to recovery of commission on Units 1 and 2.)

[6]      The  second  and  third  causes  of  action  are  both  in  equity for  breach  of fiduciary duty.  The second cause of action seeks to recover the profit Ms Sigglekow made from the sale of Units 1 and 2.  The third cause of action seeks recovery of the loss that the plaintiff contends she suffered as a consequence of the first defendant failing to obtain the best possible price on the sale of the units, and in further breach of that duty assisting these purchasers in negotiating a reduction in the agreed sale prices.

[7]      In broad terms there is an ascending scale of relief sought in the first, second and third causes of action.

[8]      The  present  pleadings  do  not  particularise  the  basis  upon  which  Namel Limited would be liable were it solvent.  However, from the bar it is clear that the plaintiff intends to argue that Namel Limited has a vicarious liability for the breaches of its employee, Ms Sigglekow.  There are going to be different arguments in that regard, naturally enough, between Namel Limited’s liabilities under the Real Estate Agents Act in the first cause of action and more difficult questions are going to arise as to the liability in equity of Namel Limited for breaches of fiduciary obligation by Ms Sigglekow, as to whether or not those breaches convert to a remedy against her employer.

[9]      Namel Limited did have an insurance policy with QBE.  The presence of that insurance policy is the basis of the application to join QBE.  This application is made in reliance on s 9(4) of the Law Reform Act 1936.

[10]     Section 9 provides:

9Amount of liability to be charge on insurance money payable against that liability

(1)       If any person (hereinafter in this Part of this Act referred to as the insured) has, whether before or after the passing of this Act, entered into a contract of insurance by which he is indemnified against liability to pay any damages or compensation, the amount of his liability shall, on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance money that is or may become payable in respect of that liability.

(2)If,  on  the  happening  of  the  event  giving  rise  to  any  claim  for damages  or  compensation  as  aforesaid,  the  insured  has  died insolvent or is bankrupt or, in the case of a corporation, is being wound up, or if any subsequent bankruptcy or winding up of the insured is deemed to have commenced not later than the happening of that event, the provisions of the last preceding subsection shall apply notwithstanding the insolvency, bankruptcy, or winding up of the insured.

(3)Every charge created by this section shall have priority over all other charges affecting the said insurance money, and where the same insurance money is subject to 2 or more charges by virtue of this

Part of this Act those charges shall have priority between themselves in the order of the dates of the events out of which the liability arose, or, if such charges arise out of events happening on the same date, they shall rank equally between themselves.

(4)Every such charge as aforesaid shall be enforceable by way of an action against the insurer in the same way and in the same Court as if the action were an action to recover damages or compensation from the  insured;  and  in  respect  of  any  such  action  and  of  the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the Court shall have the same powers, as if the action were against the insured:

Provided that, except where the provisions of subsection (2) of this section apply, no such action shall be commenced in any Court except with the leave of that Court.

(5)Such an action may be brought although judgment has been already recovered  against  the  insured  for  damages  or  compensation  in respect of the same matter.

(6)Any payment made by an insurer under the contract of insurance without actual notice of the existence of any such charge shall to the extent of that payment be a valid discharge to the insurer, notwithstanding anything in this Part of this Act contained.

(7)No insurer shall be liable under this Part of this Act for any sum beyond the limits fixed by the contract of insurance between himself and the insured.

[11]     The opposition to joinder by QBE divides into two parts:

1.The plaintiff is time-barred from joining the respondent as a party to the proceeding.  This is because were an action to be commenced now against  Namel  Limited  it  would  be  clearly  outside  the  limitation period of six  years as  applies to the first cause of action and by analogy to the causes of action in breach of fiduciary duty, essentially pleading fraud.

2.Alternatively regardless of how s 9 is constructed, leave should be refused in accordance with the proviso to subs (4) in the light of the prejudice caused to the insurer by the gross delay in making this application.

[12]     The construction and sale of these residential units took place between 1994 and 1997.  In August 1995 the plaintiff entered into an agency agreement with Rolle

Hiller, the former name of Namel Limited.  Subsequently there were the transactions selling the units.   Because of the failure of the development the plaintiff was adjudicated bankrupt in March of 1998.   In 2001 proceedings were issued in the District Court in respect of these matters, not by the plaintiff or the Official Assignee in  her  bankruptcy  but  rather  by  her  son.    These  proceedings  were  ultimately dismissed in August 2003.  Her son was prosecuted for fraud for falsely asserting that the vendor was a partnership entity Ronalo Developments.   Her son was convicted and imprisoned.  Three and a half years after the dismissal of that claim in August 2003 these proceedings were commenced in the High Court in 2006.   They were commenced by the Official Assignee in the estate of Mrs Turner.

[13]   There is no doubt that the issue of these High Court proceedings was complicated by the position taken by the Official Assignee.  The Official Assignee took the position that the benefit of the cause of action of Mrs Turner fell into her bankrupt estate.   So that notwithstanding her discharge from bankruptcy the ownership of that cause of action remained with the Official Assignee.  The Official Assignee gave only conditional consent in 2006 to the filing of these proceedings, and was concerned at its exposure as to costs.

[14]     Subsequently the statement of claim was amended in April 2008 so that there was no cause of action in contract alleged and Mrs Turner became the plaintiff.  The Official Assignee had taken the view that a claim for breach of fiduciary obligation was personal to the plaintiff and therefore did not vest in the Official Assignee.  In August 2008 the second defendant was struck off the register.   On 11 November

2009 this Court dismissed an application by Ms Sigglekow for the claim to be struck out.  There was a settlement conference between the plaintiff and the first defendant in May 2010 which did not result in a settlement.  On 16 June 2010 this application seeking leave to join QBE as a party was filed.

Is an action against the insurer in respect of the first cause of action time barred?

[15]     Mr Forsey invites the Court to follow the New South Wales Court of Appeal in  Grimson  v  Aviation  and  General  (Underwriting)  Agents  Pty  Limited  (1991)

25 NSWLR 422. In this case, for the majority, Meagher JA reasoned:

The basic reason why the plaintiff must fail is that s 6(4) [the Australian equivalent save an inconsequential difference in the proviso] expressly provides that the plaintiff in the statutory action “shall … have the same rights and liabilities … as if the action were against the insured”. That necessarily involves, so it seems to me, the proposition that any defence which would be available in the primary action is a good defence in the statutory action. In other words, the judge asked to grant leave to initiate the statutory action must ask himself: what would be the plaintiff's position if he or she began proceedings against the defendant in the primary action at this moment?   In the present case, the only possible answer is the melancholy one that if the plaintiff commenced her claim against Venture in June 1988 for its negligence in 1977 her claim would be defeated by a defence raising the Limitation Act.  This is nonetheless true in circumstances where, like the present, the plaintiff actually has on foot proceedings which are not statute- barred.

(At 428-429)

[16]     In this case there is no argument that “at this moment” were the plaintiff to commence proceedings against Ms Sigglekow and Namel Limited in respect of the statutory cause of action under the Real Estate Agents Act that she would be well out of time.   (Indeed there is an ongoing dispute as to whether her proceedings filed on

26 May 2006 were filed within six years from the date upon which Ms Turner either knew or could have with reasonable diligence discovered the existence of her cause of action.   She is arguing she only acquired that knowledge as from September

2002.)

[17]     Kirby  P  (as  he  then  was)  dissented  in  Grimson.    He  agreed  that  the construction which the majority preferred was available from the language of the Act.  He went on:

However, the language is ambiguous. For a number of reasons, I prefer the alternative construction offered by the appellant. I must state why.

Context and purpose of a reformatory statutory provision:

The provisions of s 6 of the Act are clearly reformatory. Whatever their ultimate historical origins in other jurisdictions, their purpose in this State is to provide a means of redress against the insurer of a person responsible for an event giving rise to a claim for damages or compensation (the insured) where, for a reason contemplated by the section, proceedings against the insured cannot be maintained or, if started, continued. Such a predicament would, but for the section, leave the plaintiff in the frustrating condition that liability which might otherwise have been established against the insured, in respect of which the insured would at the relevant time have enjoyed appropriate insurance cover, could not result in an enforceable verdict to allow the plaintiff to recover the damages from the insurer. The insurer would    walk   away   with    a    windfall;   the   plaintiff    with    nothing. (At 423-424)

[18]     Kirby P went on to develop his reasoning by an analysis of the history of the legislation.  He then came to the words relied upon by Meagher JA and reasoned:

In my view the purpose of this phrase is to achieve the statutory assimilation of the action against the insurer to the action which would have existed against the insured at the time the cause of action arose. To prevent injustice to an insurer by a gross delay in the enforcement of the action based on the statutory charge which certainly arose at that time, the bringing of an action by the plaintiff against the insurer is controlled by the proviso which Parliament has enacted affording a gateway through which the plaintiff must pass to commence the action on the “charge”. This is a gateway at which the relevant court must consider whether or not it will grant leave to the party to commence the action.

…

The   difficulty   which   suggests   that   the   construction   urged   by   the respondents should be rejected is presented by the simple fact that such construction seriously undermines the achievement, in potentially numerous cases, of the reformatory object of the section. Clearly, the section contemplates the supervening winding up of an insured corporation or the death or disappearance of an individual who was insured before the plaintiff has recovered. Such events are the very circumstances which attract the application of the section and demonstrate its utility. But if the construction urged by the respondents and accepted by Newman J is correct, no relief would be available under the section to a plaintiff who commenced proceedings within time, discovered the need for resort to the section outside the  limitation  period  otherwise  protecting  the  insured,  and  thus,  at  the gateway of leave, faces the  impenetrable barrier  of a limitation  defence invoked by the insurer.

(At 425)

[19]     In UEB Packaging Ltd v QBE Insurance (International) Ltd [1996] 2 NZLR

467 Baragwanath J in the High Court followed the majority in Grimson.  The Court

of Appeal dismissed the appeal [1998] 2 NZLR 64 but without the need to consider the limitation issues.

[20]     I favour the reasoning of Kirby P and would add some further reasoning of my own.   In my view adoption of Meagher JA’s construction leads to an inconsistency between subs (4) and subss (1), (2) and (3).     By Meagher JA’s reasoning the charge on insurance money, and the priority provided, continues for a longer period than the ability to enforce the charge by way of action.  It is difficult to grasp how Parliament could have intended continuance of the charge and priority but imposed a shorter time limit on the ability to enforce such charge by way of action against the insurer.

[21]     The point can be illustrated by an example.   Assume A is the owner of a residential unit which has suffered damage caused by the negligence of the builder, B.  A sues B in negligence.  B has a contract of insurance with C indemnifying it against any liability to pay damages for negligence.   A’s action against B is commenced four years into the six year limitation period.  Two years later the case goes to trial and judgment is in favour of A.   B goes into liquidation.  At this point in time more than six years have elapsed.  On the Grimson interpretation it is now too late for A to commence an action against C under subs (4).  However, if C pays out to the liquidator of B, A is able to claim against the liquidator of B, a charge on the money received, subss (1) and (3).

[22]     On this analysis the function of subs (4) becomes more apparent.   It is a means by which A can enforce the charge directly against C should there be some difficulties obtaining the benefit of the charges from B.

[23]     In this regard it can be seen that subs (4) creates an unusual cause of action. In FAI (NZ) General Insurance Co Ltd v Blundell and Brown Ltd [1994] 1 NZLR 11 (CA) at 17 Richardson J said:

… to focus on s 9(1) alone is to overlook the significance of s 9(4) equating the plaintiff's right of action against the insurer with the plaintiff's action against  the  insured.  Section  9(4)  provides  that  the  charge  shall  be enforceable by action against the insurer "as if the action were an act to recover damages for compensation from the insured;". It goes on to spell out

the character of that proceeding. It provides that the plaintiff in the statutory action "shall . . . have the same rights and liabilities . . . as if the action were against the insured:". The insurer's liability is limited to the sum fixed by the contract of insurance itself (s 9(7)) and s 9(6) relieves the insurer from the liability under the charge to the extent that it has made payment under the contract of insurance without actual notice of the charge. Subject to those necessary qualifications what s 9(4) does is to put the insurer into the same position as the insured for the purposes of the claim by the injured party. As the Australian cases put it the claims against the insured and against the insurer  run  in  tandem  (Cambridge  Credit  Corporation  Ltd  v  Lissenden (1987) 8 NSWLR 411, 421; Ratcliffe v VS & B Border Homes Ltd (1987)

9 NSWLR 390; and Grimson v Aviation and General (Underwriting) Agents

Pty Ltd (1991) NSWLR 422). In terms of the statutory language the parties have the same rights and liabilities. Both proceedings have the same stamp. In my view it must follow that the proceeding against the insurer has the same character as the proceeding against the insured. Given that stamp it is not to be treated as an independent action to recover a sum recoverable by virtue of an enactment for the purposes of s 9(4). That reflects the policy of the section that the plaintiff should be in no better or worse position if seeking to proceed against the insurer than if proceeding against the insured.

[24]     My analysis differs from Meagher JA in that I read subs (4) in the context of the other subsections.  I read subs (4) as having an ancillary function to subsections (1), (2) and (3), which are the principal subsections.   Accordingly, any reading of subs (4) which undermines or contradicts the preceding subsections should be avoided.

[25]     I am of the view that if the first cause of action, the claim under the Real Estate Agents Act, is in time then an application can at any later time be brought for leave to bring proceedings directly against the insurer as if it were the extant action to recover damages for compensation from the insured.  Where an action has been commenced against the insured, “the Court shall have the same powers, as if the action were [the existing action] against the insured”.

[26]     I conclude this application lodged in 2010 to invoke subs (4) is not barred by the Limitation Act 1950 for that Act has no better application to it than it does to the existing actions against the insured.

Whether the gross delay justifies refusal of leave of the Court to commence such an action

[27]     Actions under s 9(4) are only by leave.  In New Zealand the proviso for leave is uncluttered by any criteria.  There is no doubt that leave can be refused if to grant the same would involve an abuse of process.   An illustration of this is the UEB Packaging Ltd decision.   In this case UEB had goods stored by Kirby Furniture Removals  Limited.     A  fire  at  Kirby’s  premises  destroyed  the  goods.     UEB deliberately obtained judgment by default against Kirby, when it was in receivership, and when UEB knew that Kirby would not be able to answer the judgment.  Kirby had prior to the judgment informed its insurer, QBE, but did not inform QBE of the proceedings.  The latter failure was in breach of its contract of insurance with QBE.

[28]     Both the High Court and the Court of Appeal refused leave to UEB to bring a claim directly against QBE under s 9(4).

[29]     QBE  were  obviously  in  a  difficult  position  with  judgment  having  been entered.   UEB volunteered to apply to set aside the judgment to enable QBE to contest the merits of its claim.   The Court of Appeal, however, considered that to allow UEB to escape in that fashion would be to tolerate what it conceived in the particular circumstances to be an abuse of process in entering into the judgment by default in the first place.

[30]     However, UEB Packaging is a useful illustration of the function of s 9(4) to back up the charge and priority given in subss (1) and (3).  Normally it will not be necessary to bring an action under s 9(4) to get the benefit of that charge.  Indeed, it might well be an abuse of process to apply prematurely to bring such an action.  For example, if the plaintiff is bringing an action against an insured defendant to be tried by a jury, an application to join the defendant’s insurer as a party under s 9(4) could well be seen as a means of inviting the jury to provide a judgment in the sure knowledge that it will be paid by an insurance company.  Indeed, it is not normal in Judge alone cases for either the plaintiff or the defendant to disclose the fact, that both usually know, as to whether or not the defendant is indemnified.

[31]     It follows that it is inevitable that s 9(4) applications will be rare, and likely to be initiated sometime well after the claim is lodged against the defendant informally or in Court, and only when there is doubt as to the claimant’s ability to obtain the benefit of a statutory charge.

[32]     Once s 9(4) is seen in this way, it follows that opposition of gross delay, cannot measure delay from the time that the events giving rise to the claim against the insured arose.  Rather, any delay needs to be measured from the time in which a reasonable plaintiff or claimant would consider it necessary to make an application to commence a cause of action under s 9(4).

[33]     In this case that time certainly arose when Namel Limited was struck off the register in August 2008.

[34]    When the proceedings were commenced in 2006 Namel Limited was in receivership and in liquidation.  However, there would have been no reason at that stage to suppose that the receivers or liquidators would not honour the charge. Shortly after the proceedings were issued, in late 2006 the plaintiff’s solicitor sought leave to withdraw.  It was apparent from the outset the Official Assignee was a semi- reluctant litigant and by the third quarter in 2007 was wanting to be out of the litigation.   Mrs Turner was also having difficulty in instructing counsel.   Various counsel appear in the minutes as potentially going to act for Mrs Turner:   Messrs Callaghan, Taffs and the late Jonathan McCarthy.   Mrs Turner’s son was making appearances on behalf of his mother who is an elderly lady.  By March 2009 the first defendant had filed its application to strike out and Associate Judge Osborne was pointing out to the plaintiff that leave of the Court would be required to continue against Namel Limited.

[35]     From  May  2009  Mrs  Turner  obtained  the  services  of  the  firm  of  Joynt Andrews.  The application to strike out was set down for 29 September.  That was heard and dismissed in a judgment of 11 November.   In February 2010 Associate Judge Osborne resumed case management.  He records on 4 February:

[3]      The prospect of progress has now regrettably been complicated by the first defendant’s recent raising of the possibility that her employer (the

second defendant) may have carried insurance in relation to the conduct which is the subject matter of the proceeding.   Mr Davis [her counsel] is currently making inquiries of Duncan Cotterill, who acted for the second defendant in the District Court proceeding.  There is no point speculating on the outcome of those inquiries, which are unlikely in any event to lead to a simple conclusion.   Mr Davis wishes to preserve the possibility of an indemnity claim under the Law Reform Act 1936.

[36]     An earlier minute of Associate Judge Christiansen on 28 November 2008 recorded:

[1]       Mr Galloway was connected to this conference because he formerly acted for the second defendant’s insurers when this proceeding was subject to litigation before the District Court.

[37]     On 4 February it will have been noted it is the first defendant raising the prospect of indemnity under the Law Reform Act.  The same minute records “For the plaintiff, Ms Tucker does not object to the first defendant having time to explore the insurance issue.”

[38]     Associate Judge Osborne went on:

Timetable

[5]       The Court and the plaintiff are entitled to have the insurance position clarified urgently.  The consideration of possible insurance should have been covered  by  the  first  defendant  a  long  time  ago.    The  Court  has  grave concerns in terms of issues of justice at the prolonging of this proceeding commenced in May 2006 in relation to events going back to the mid 1990s.

[6]       I direct:

(a)The first defendant has ten working days within which to clarify   the   possible   insurance   position   of   the   second defendant relevant to the subject matter of the proceedings.

(b)Immediately upon such clarification as may be obtained by the first defendant, counsel for the first defendant is by memorandum to the Court, served upon the plaintiff also, to summarise what has been ascertained about the insurance position, if any.

[39]     He then went on to set up a judicial settlement conference, including within that the opportunity for a representative of the relevant insurance company, should there be a policy, to participate.

[40]     On 4 May Associate Judge Doherty recorded that the settlement conference did not resolve the issue, and gave the plaintiff until 15 June to take whatever steps are necessary to proceed against the second defendant.  Within that time limit, the plaintiff made this application to join QBE.

[41]     This litigation has had a tortuous history.  But, in respect of taking advantage of s 9(4) of the Law Reform Act, I do not think there is any basis for a conclusion that there has been gross delay on the part of the plaintiff.

Whether the defence of laches is available

[42]     I then turn to the argument that leave should be refused on the grounds that this Court should recognise a defence of laches.

[43]     The context of the laches argument is that the significant causes of action are the second and third.  They seek relief in equity for breach of fiduciary duty.  The third cause of action particularly is akin to a common law action in fraud.  In these proceedings Mr Forsey argued that for the purposes of limitation, this cause of action should be approached as within the scope of s 28(a) of the Limitation Act 1950 so that were this Court to follow the Grimson interpretation of subs (4), QBE could adopt Namel’s position that the third cause of action should not be heard because it is being commenced more than six years after a plaintiff could, with reasonable diligence, have discovered it: see Collier v Creighton [1996] 2 NZLR 257 (PC).

[44]     This judgment rejects the Grimson interpretation.

[45]     However, Mr Forsey has invited me to apply the equitable test as to laches within the context of the need for leave, and in support of the principal argument that leave should be refused because of gross delay.

[46]     He argues that on 8 November 2004 the plaintiff’s then solicitor wrote to QBE’s solicitors informing them that if an acceptable offer was not received within ten working days the plaintiff’s solicitor was instructed to file proceedings against the respondent.  However, no such proceedings were initiated until this year.

[47]     From the bar Mr Forsey advised that until a claim is received, solicitors acting for insurers are not able to advise on reserves, and that in this case reserves have not been set.  The fact that no reserve exists amounts to actual prejudice.

[48]     Despite the letter of 2004, when proceedings were commenced in 2006, they were confined to proceedings against the first and second defendants.  By this stage the second defendants had already been placed in liquidation.  A prudent step would have been to immediately serve the liquidator of the second defendant (this did not happen, because at that stage the Official Assignee, who was very reluctant for the proceedings to be issued, had requested that the proceedings not be served to avoid any liability for costs).

[49]     Essentially Mr Forsey was arguing nonetheless that QBE had been denied the opportunity to participate in the conduct of the proceedings since 2004, and that there was a real opportunity to include them in 2006.

[50]     I  am  satisfied  that  the  position  taken  by  the  Official  Assignee,  and  the problems of obtaining counsel are the main reasons for the delay.  This is not a case upon which the plaintiff has sat on her rights inordinately.  I take into account the fact that she is an elderly lady, who has also been under the influence of her son.  I do not think equity should intervene, by way directly of the doctrine of laches, nor by a refusal of leave to prevent her pursuing a remedy.

[51]     Accordingly, the application to join QBE and to plead a cause of action under s 9(4) of the Law Reform Act 1936 is granted.  The plaintiff is entitled to costs.  If the parties cannot agree I will receive written submissions, first exchanged in draft, and limited to five pages.

Solicitors:

Joynt Andrews, Christchurch, for Plaintiff

Clark Boyce, Christchurch, for First Defendant

Duncan Cotterill, Christchurch, for Proposed Defendant