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8 DECEMBER 2022 BY JASON GEISKER & SIMON GIBBS
I Market overview
New Zealand is home to a developing third party litigation funding market, although it remains a small and relatively new industry, particularly when compared with similar common law jurisdictions such as Australia. It was not until the turn of the millennium that third party litigation funding appears to have first emerged in New Zealand.[2]
In 2021 the New Zealand legal services market was worth an estimated $3.3–$3.9 billion in annual revenue.[3] The litigation-related portion of that overall market had an estimated $330 million in revenue, with the addressable market for third party litigation funding considered to be two-thirds of that, or approximately $220 million in annual revenue terms.[4] As such, given the paucity of cases[5] that have reportedly received funding over the past two decades, third party litigation funding appears significantly under-utilised in New Zealand.
Over the past five years the civil litigation category of the legal market has declined, as a share of overall legal services.[6] This may be due in part to the economic headwinds caused by covid-19. Like its Australian cousin, New Zealand dealt with the covid-19 pandemic comparatively well from a public health perspective, but has nonetheless experienced a slight downturn in demand for legal services in the aftermath of the pandemic.
The market for litigation funding is influenced by a range of factors including the general awareness of the availability of funding, uncertainty as to regulatory requirements, an absence of explicit endorsement of litigation funding by the courts, delays in introducing a comprehensive set of procedural rules for the conduct of representative actions and a lack of significantly sized dedicated plaintiff law firms with experience sufficient to take advantage of litigation funding. Various macroeconomic factors also impact on the strength of the local economy with consequential impacts on the demand for legal services and the number of potential claims meeting the threshold criteria required for commercially viable funded claims. Looking ahead, the legal services market is projected to see a slow return to growth, averaging 2.2 per cent per annum over the next five years, to arrive at a predicted $4.4 billion in annual revenue by 2027.[7] The litigation funding market is expected to grow at least in line with these broader trends.
Given the relatively small size of the market and the fact that third party litigation funding arrangements are not generally disclosed,[8] precise data as to the extent of third party litigation funding is expected to remain difficult to come by.
In terms of market participants, until recently third party litigation funding options have been somewhat limited, with the local incumbent funder, LPF Group Ltd,[9] facing little in the way of competition.[10] However, in more recent years other experienced and well-resourced funders have entered the market. These include Claim Funding Australia,[11] Omni Bridgeway,[12] Litigation Lending Services[13] from Australia and Harbour Litigation Funding from England.[14] Most funders in the market require a minimum claim size of between $2–$5 million before they will consider funding applications.[15] Some funders also require a minimum claim value to claim budget of 10:1.[16]
In its recent report on class actions and litigation funding the New Zealand Law Commission (NZLC) identified a total of 40 examples of cases brought in the jurisdiction where the plaintiff had received litigation funding.[17] This collection of third party funded cases included 10 representative actions under High Court Rule 4.24, comprising five consumer claims, three shareholder claims, one investor claim and a claim against the government.[18] The NZLC has also identified at least 11 insolvency cases that have received third party litigation funding,[19] and at least 15 insurance claim cases[20] that have also received third party funding. Third party funding has also assisted in cases concerning negligence and breach of fiduciary duty,[21] statutory demands for repayment of a loan,[22] a relationship property claim[23] and a land claim.[24]
In May 2022, the final report of the NZLC on Class Actions and Litigation Funding (NZLC R147) declared that, consistent with recent judicial observations, third party litigation funding is desirable for New Zealand ‘in principle’.[25] The report concluded that litigation funding has an important role to play in improving access to justice in New Zealand, including by alleviating the costs and risks of litigation.[26] Even those opposed to litigation funding in the jurisdiction acknowledge that it is now here to stay.[27]
As discussed in this chapter, after a decade of inaction, the NZLC’s report has certainly paved the way for legislative change to allow more certainty, efficiency and structure for those seeking to utilise the benefits of third party litigation funding services to obtain access to justice.
II Legal and regulatory framework
New Zealand does not have a statutory or regulatory regime that specifically governs litigation funding. Accordingly, the conduct of funders in litigation is governed under the general law and through the torts of maintenance and champerty. The armoury of the court used to regulate the conduct of litigation funders derives from its powers to:
stay proceedings;[28]
strike out proceedings;[29]
order security for costs;[30] and
make non-party cost orders.[31]
i The applicability of statutory schemes to funding agreements
The extent to which litigation funding services are captured by existing statutory schemes is currently still a matter of debate and uncertainty. Broadly, litigation funding services may be captured by general consumer protection legislation,[32] credit and financial services legislation[33] and financial services provider legislation.[34] However, in respect of each of these general legislative schemes there has been no determinative court ruling to confirm their application to services provided by third party funders.
It is reasonably arguable that the contractual terms of a funding agreement are subject to the Fair Trading Act 1986 prohibitions against misleading or deceptive conduct,[35] making unsubstantiated claims,[36] false or misleading representations,[37] unfair contract terms[38] and engaging in unfair practices.[39] This is because the services provided by a funder are likely to be captured by the expansive definition of services under Section 2 of the Fair Trading Act 1986. However, the application of the other legislative schemes depends, at minimum, on a construction of threshold definitions under the respective legislation that have not yet been judicially determined.[40] Arguably, litigation funding services do not easily or appropriately comport with the definitions of financial products,[41] credit contracts,[42] consumer credit contracts[43] or consumer services[44] that would invoke the jurisdiction of the other legislative schemes. The result is a degree of uncertainty as to the precise regulatory requirements applying to litigation funders in New Zealand. Illustrative of the uncertainty of interpretation that currently prevails, only two of the five domestic funders operating in New Zealand have registered as a financial service provider under the Finance Service Providers (Registration and Dispute Resolution) Act 2008.[45]
ii Maintenance, champerty and abuse of process
In contrast to other common law jurisdictions, the archaic tortious protections of maintenance and champerty persist in New Zealand. Despite their persistence, there are no reported examples of these torts being invoked to regulate funder control of litigation.[46] As a consequence, the torts have fallen into disuse.[47] Consequently, there is a mounting reform debate on the continued relevance of these ancient torts in modern litigation. The most prominent voice for reform is the NZLC. In May 2022, NZLC R147 recommended the abolition of tortious maintenance and champerty,[48] bringing New Zealand in line with other common law jurisdictions such as Canada and Australia.
In practice, the mechanism courts have favoured to police litigation funding has been to stay proceedings as an abuse of process.[49] The power to find a proceeding an abuse is derived from the court’s inherent jurisdiction[50] and the rules of court,[51] and is governed by the test set down by the Supreme Court of New Zealand in Waterhouse v. Contractors Bonding Ltd (Waterhouse).[52] The circumstances that may give rise to a stay for abuse, as set down in Waterhouse, were subsequently summarised by the Supreme Court in PricewaterhouseCoopers v. Walker:[53]
Categories of conduct that would attract the intervention of the court on traditional abuse of process grounds include proceedings that: deceive the court, are fictitious, or a mere sham; those that use the process of the court in an unfair or dishonest way or for some ulterior or improper purpose or in an improper way; those that are manifestly groundless, without foundation or serve no useful purpose; and those that are vexatious or oppressive.
Although there have been recent examples where the court has exercised the power to stay a proceeding,[54] such orders have been granted sparingly. Taken together, the authorities indicate judicial acceptance of the legitimate role of litigation funding to facilitate access to justice, indemnify plaintiffs and provide commercial certainty for defendants.[55]
The general disposition of the court to litigation funding has been an incremental and cautious acceptance of the role played by funders in modern litigation. New Zealand courts have adopted a broadly non-interventionist approach to regulate funding that seeks to balance the rights of private parties to contract[56] with the court’s supervisory role, particularly in representative proceedings.[57] The courts have shown a willingness to scrutinise client–funder relationships and intervene to protect plaintiffs, or class members as the case may be, when they consider it necessary.[58]
The relationship between litigant and litigation funder is principally a creature of contract supplemented by any existing protections at law or equity or in statue. The touchstone of regulation is the funding agreement. The orthodox position of the court in relation to funding agreements was expressed by the Supreme Court in Waterhouse[59] and reaffirmed by the Supreme Court in PricewaterhouseCoopers v. Walker at [55]:
In Waterhouse, this Court determined that it is not the role of the courts to act as general regulators of litigation funding arrangements or to give prior approval to such arrangements, at least in cases not involving representative actions.[60] Nor was it the Court’s role to assess the fairness of a funding arrangement as between the funder and the claimant party.[61] However, a court may exercise jurisdiction to stay for abuse of process.[62]
The principle question for courts has been the degree to which a funder may exercise control over the litigation. The courts have recognised that there is a legitimate locus of control that may be exercised by a litigation funder that is consistent with its reasonable entitlement to protect its investment.[63] The outer boundaries of this control are somewhat uncertain. A helpful description of the potential boundaries of acceptable funder control were expressed by Elias J (in dissent) in PricewaterhouseCoopers v. Walker at [122]:
Some self-interest is permitted to the funder. There would otherwise be no commercial funding for litigants who need it. Where the line is drawn is inevitably in part a matter of degree. The focus is necessarily largely on the incentives and control the litigation funder has under the funding arrangement. They include, as was suggested in Waterhouse, control of the litigation, the profit share of the funder and the role of lawyers in the litigation. To be objectionable such control must be beyond that which is reasonable to protect money actually advanced or committed to by the litigation funder.[64]
The emergence of representative proceedings has altered the relative passivity of the court in regulating and exercising its oversight functions in respect of third party funding arrangements. Arguably, class actions represent a unique nexus between the public interest, access to justice and the resolution of mass claims that attracts increased scrutiny by courts and legislators alike. In particular, the availability of opt-out class actions following the decision in Southern Response v. Ross[65] has elevated the importance of the court exercising its oversight role in circumstances where persons may unknowingly be members of a class.[66] Recent authority confirms that courts will now take a more active role in class proceedings in respect of approving settlement or any discontinuance[67] or communications with class members.[68] Relatedly, the comprehensive review and report produced by the NZLC exemplifies the current momentum toward reform being advanced by policymakers, and responds to judicial calls for legislative clarity.[69]
iii Reviews into the regulation of litigation funding
In May, the NZLC published its much-anticipated report into class actions and litigation funding.[70] NZLC R147 is the culmination of an extensive discussion and consultation process over the past two-and-a-half years, with the NZLC engaging widely with stakeholders from government, the legal profession, the litigation funders, business, academics and community organisations.[71] The NZLC’s report makes 121 recommendations for a comprehensive reform of the regulation of class actions and litigation funding in New Zealand.
The report calls for a comprehensive and integrated reform package. We highlight below a selection of the NZLC’s recommendations that capture the key architecture, design and procedural mechanisms of the proposed regime:
Reform of class actions: the report recommends:
- a statutory class actions regime to replace the current procedure for representative proceedings under High Court Rule 4.24. The recommendation includes a proposed Class Actions Act, and contains a draft blueprint for legislative reform based on the 121 recommendations;
- a class certification procedure to determine if a proceeding may proceed as a class action;
- a statutory power to manage concurrent (or competing) class proceedings;
- the choice of an opt-in or opt-out model for class proceedings based on the circumstances of each case;
- a settlement approval procedure for class actions;
- standing for state entities to act as representative plaintiff for a class;
- a bespoke, rules-based case management procedure, to be developed by the Court and Rules Committee;
- a public register of class actions to be maintained by the Ministry of Justice to provide transparency and public insight into current class claims; and
- a public class actions law clinic and related services that enable and promote access to justice and the availability of public resources to assist class members understand the class actions process.
- Regulation of litigation funders: the report recommends:
- abolition of the torts of maintenance and champerty;
- a litigation funding agreement must be approved by the court to be enforceable;
- disclosure of funding agreements to the court and defendants (with appropriate measures to protect privilege and tactical matters);
- a statutory power to make and regulate cost-sharing mechanisms (referred to as cost-sharing orders by the Commission, otherwise known as common fund orders in other jurisdictions);
- a public class actions fund;
- power to make orders directly against a litigation funder for the provision of security for costs and payment of adverse costs; and
- a statutory power to appointment of an expert to assist the court to determine the fairness and reasonableness of funding commissions.
The government will now consider the report and may accept or reject the NZLC’s recommendations. Even if the government accepts the NZLC’s recommendations, a number of key procedural matters will still require further consultation and decision by the Court and Rule Committee.
III Structuring the agreement
Any funded litigation conducted in New Zealand requires consensus being reached between the claimant, its lawyers and the litigation funder as to how the proceeding will be conducted and how the risks of the litigation will be shared.
i Form of the typical litigation funding arrangement
Arrangements for funded litigation are commonly comprised of two separate client agreements. The first is the retainer, or terms of engagement, between the client and their lawyers. This agreement sets out the scope of the legal work and the terms under which such work is to be performed. The retainer will typically set out the lawyer’s basis for charging legal fees and disbursements as well as a raft of other standard terms and conditions of engagement, required by the Rules of Conduct and Client Care for Lawyers. The litigation funder is not generally party to this client retainer agreement and commonly the funder and lawyers have no direct contractual relationship at all, although clients often authorise their lawyers to report directly to the funder. Clients can often also agree with the funder as to what constitutes approved standard lawyer terms between the client and his or her lawyer. The funded client usually also authorises and directs the lawyer to receive any resolution sum on the client’s behalf and to apply it in accordance with an agreed priority, as set out in the funding agreement.
The client typically enters into a second (and separate) agreement with a litigation funder. This litigation funding agreement details the terms on which the litigation funding will be provided to the client. Generally, the lawyers are not a party to this funding agreement, although the agreement may provide for certain irrevocable directions to be given by the client to his or her lawyers for the purposes of keeping the litigation funder informed of progress and consulted on any significant decisions to be made throughout the litigation.
The funding agreement generally provides for the funder to advance some or all of the funded client’s legal costs and disbursements of conducting the litigation as they are incurred. These funds are generally advanced on a non-recourse basis.[72] The arrangements typically also require an indemnity from the funder in favour of the funded client, in respect of adverse costs, in the event that the litigation is unsuccessful.[73] Where an adverse costs indemnity is provided litigation funders generally also agree to provide security for costs in the event that the court makes any orders for security.[74]
In return, the funded client agrees the funder may receive a portion of any resolution sum recovered. Resolution sums are usually achieved via settlement or from the proceeds of any favourable judgment or court order. The funder’s remuneration is commonly calculated as a percentage of the sum recovered, although it can be calculated in other ways. Commissions based on percentages are dependent on the nature of the risks undertaken, the time involved and the type and amount of funding required. In larger projects or class action litigation, the funder may also assist with pre-claim administration, book building, project management and general administration, and may charge a separate fee for such services in the event of success. Funding agreements can allocate project management responsibilities and day-to-day administrative control over the litigation to the funder, allowing the funder the right to provide recommendations and administrative support to the lawyers, subject to the client’s overriding instructions.
ii Judicial intervention
On various occasions the Supreme Court has been asked to consider the role it should play in respect of litigation funding agreements. As previously mentioned, in broad terms the court has rejected the general notion that it should act in the role as general regulator of litigation funding agreements,[75] expressly noting that this is more appropriately a matter for legislation or regulation if considered desirable. More recently, the NZLC has enthusiastically taken up this invitation, recommending a raft of legislative and regulatory changes in this area.[76]
Likewise, the court plays no role in assessing the fairness of any bargain between a funder and a plaintiff.[77] As has been discussed, the court does maintain a role in ensuring that arrangements made with litigation funders do not amount to an abuse of process.[78] Consistent with common law developments in jurisdictions like Australia, the concept of what constitutes an abuse of process in the context of a litigation funding agreement has been restricted. In Waterhouse, the Supreme Court stated that a stay on abuse of process grounds should only be made ‘on traditional grounds or where the funding arrangement effectively constitutes’ an impermissible assignment of a cause of action.[79] In assessing whether there has been an assignment, the court will have regard to the funding arrangements as a whole, including the level of legal control able to be exercised by the funder, the profit share and the role of the lawyers acting.
In Fostif, the New South Wales Court of Appeal recognised that a high level of control by the funder is expected and permissible but cautioned that it would be contrary to public policy for the lawyers to fully abdicate to the funder the obligation to act for the representative party.[80] This acceptance of a level of control being an inevitable part of the funder merely protecting its investment has also been embraced in New Zealand.[81] Therefore, while it is permissible for a funder to maintain day-to-day control of a claim, the legal representatives are expected to consult with the client on key issues. Hence, funding agreements often expressly preserve the client’s right to override the funder’s instructions and commonly include dispute resolution mechanisms.
IV Disclosure
The Supreme Court has made its position clear on the issue of disclosure and approval of third party litigation funding agreements, at least in the context of non-representative proceedings. The leading case in this area is again Waterhouse,[82] where the Court said it was not its role ‘to act as general regulators of litigation funding arrangements’. The Court stressed it is not the courts’ role to give prior approval to funding arrangements.[83] However, the Court left open the scope of the courts’ supervisory role for litigation funding arrangements in connection with representative proceedings.[84]
Subsequently, in the course of dealing with a representative proceeding on other procedural issues, the Supreme Court in Southern Response Earthquake Services Ltd v. Ross reviewed what had been said in Waterhouse about the role of the court in reviewing litigation funding agreements and concluded it would be premature to say that there is any expectation for representative proceedings, to the effect that litigation of a funding agreement should routinely be provided to the court as part of an application under HCR 4.24(b).[85]
So,although there is no requirement for disclosure of the funding agreement as a whole, Waterhouse is authority for the proposition that the parties to the litigation are entitled to know the identity of the real parties to the litigation, and on this basis the funded parties must still disclose the fact that there is litigation funding involved, the identity of the litigation funder and whether that litigation funder is subject to the jurisdiction of the New Zealand courts.[86]
Other particulars of the funding arrangement, such as the financial means of the funder and the basis on which the funding can be withdrawn, are generally not required to be disclosed. These issues can be addressed more directly with an application for security for costs if appropriate. Even in the context of an abuse of process application, where the funding agreement is then required to be disclosed to the parties, the courts have been careful to enable the funded party to maintain confidentiality over terms that might nevertheless provide a tactical advantage to the opponent should they be divulged.[87]
V Costs
New Zealand is an adverse costs jurisdiction where the power to award costs is at the discretion of the court.[88] Practically, the courts administer a scale costs regime that is instructive, but not determinative, of the manner in which costs are calculated and recovered.[89] An increase or uplift on scale costs is available at the discretion of the court, following a multifactorial assessment of the complexity, significance and reasonableness of the costs claimed.[90]
i Security for costs
Security for costs may be ordered on the application of a defendant where the plaintiff is either resident or incorporated outside of the jurisdiction, or there is reason to believe that a plaintiff will be unable to pay a defendant’s costs if unsuccessful.[91] The order is discretionary, and the presence of a litigation funder may be a relevant factor to security being ordered.[92] Practically, security for costs is commonplace in representative proceedings where a litigation funder is involved. The NZLC has recommended a statutory presumption in favour of security where the proceeding is supported by litigation funding, to be provided in a form that is enforceable in New Zealand.[93] Beyond ordering security, the courts have been reticent to adopt a general regulatory mandate of litigation funding in respect of capital adequacy or requiring proof of a funder’s capacity to satisfy an adverse costs award. In this regard the Supreme Court in Waterhouse held that:
We do not consider that the financial means of the funder should be disclosed. The legitimate interest of the other party in this issue can be met by way of an application for security for costs. In any event, it is not the function or within the competence of the courts to provide any general regulation of litigation funders, including of their financial standing.[94]
The forms of security that the court is willing to accept are not closed, and ultimately will be at the satisfaction of the court.[95] In practice, the court has accepted the following forms of security, depending on the circumstances of each case:
cash paid into court or held on trust;[96]
a bank bond or guarantee;[97] and
a guarantee from the litigation funder.[98]
New Zealand courts have typically rejected after-the-event (ATE) insurance as an adequate form of security arising from concerns regarding enforceability against underwriters.[99] The Court in Houghton v. Saunders did, however, highlight the narrow circumstances in which a deed of indemnity from an insurer may be permissible: where the underwriters’ obligations were enforceable in New Zealand and the underwriters were reputable and solvent.[100]
ii Funder’s liability for costs
A funder’s liability for costs arises in two contexts; under contract and at general law. At general law, the power to make a non-party cost order against a funder already exists as part of the court’s general costs discretion and is recognised at common law.[101] Despite the acceptance of non-party cost orders, a funder’s liability for costs is the subject of an active reform debate in the class actions context. The NZLC has recommended a discrete statutory power to ‘make orders directly against the litigation funder for the provision of security for costs and payment of adverse costs’[102] in class actions. Practically, the issue for the NZLC is enforceability, where the assets of the funder may be outside the jurisdiction, or the terms of the funding agreement may not be governed by the laws of New Zealand. The NZLC has recommended a suite of intersecting recommendations that would substantially amend the costs regime currently applicable to class proceedings, namely that (in addition to the aforementioned non-party orders):
the terms of funding agreements are only enforceable if approved by the court;[103]
a rebuttable presumption that security for costs, in all funded class proceedings, will be provided in a form that is enforceable in New Zealand;[104] and
the governing law under funding agreements of class proceedings should be the law of New Zealand.[105]
iii Costs and class actions
Class actions have introduced a number of novel issues into the costs landscape, such as common fund orders and common costs in concurrent proceedings.
Common fund doctrine
The common fund doctrine is in a nascent stage of development in New Zealand. The first application for a common fund order (CFO) was made in the Ross v. Southern Response class litigation.[106] Ultimately, the proceedings resolved in December 2021 without the Court being required to determine the application for a CFO. However, the series of decisions from the High Court, Court of Appeal and Supreme Court in this litigation describe the general contours of an emerging acceptance of the common fund doctrine.[107]
The second CFO application was made in the Simons v. ANZ Bank NZ class action. The decision in Simons v. ANZ Bank NZ Ltd [108] (handed down on 27 July 2022) draws heavily upon the Ross v. Southern Response litigation, ultimately finding that the High Court has power to make a CFO in a representative proceeding, although the Court ultimately declined to make the CFO at an early stage in the proceeding.[109] Accordingly, the power exists but it has yet to be exercised in an appropriate case and at an appropriate stage.
The Supreme Court in Southern Response v. Ross[110] recognised that the court has power to approve settlements as a condition of leave being granted under HCR 4.24 to bring a representative proceeding on an opt out basis,[111] and that this power derives from the court ‘exercising an adjudicative power in their protective or supervisory jurisdiction’.[112] It is not clear whether such settlement approval power extends to making a CFO or the setting of funding commission rates in the absence of a statutory foundation for this power. However, such an interpretation may be available based on the Court’s finding that ‘. . . in deciding whether to approve a settlement, courts can consider the extent to which the settlement prejudices individual class members’.[113]
The common fund doctrine arises in this context as a mechanism to ensure that individual class members are not prejudiced inter se. As the Supreme Court expressed, ‘[c]ommon fund orders are one of the techniques used to try and respond to what is referred to as the problem of “free riders”; that is, those who take the benefit of the claim without shouldering any of the burden’.[114] The advent of opt-out or open class representative proceedings in New Zealand as a result of the decision in Southern Response v. Ross[115] produces the potential for ‘free-riding’ by open class members that have not entered a funding agreement; thereby, they are not contractually bound to contribute to the legal or litigation funding costs of the proceeding, but are able to share in the resolution of the proceeding.
In the same litigation in Ross v. Southern Response, the Court of Appeal expressed support, albeit obliquely, that the Court had sufficient power to make such an order without determining the question. Per Goddard J at [110]:
The Australian courts have developed a range of techniques for addressing the perceived unfairness of a subset of claimants bearing all of the costs of the proceedings while others receive the same benefits from those proceedings, including making orders closing the class before relief is provided, making funding equalisation orders, and making common fund orders. We make no comment on the availability of such orders under r 4.24: that would not be appropriate in circumstances where an application by Mr and Mrs Ross for a common fund order remains to be determined in the High Court. But we are confident that the Court has the necessary tools to address any real unfairness in this context, whether under the High Court Rules or in the exercise of its inherent powers.[116]
The above line of reasoning ultimately informed Venning J’s acceptance that the court has power to make a CFO in Simons v. ANZ Bank NZ Ltd.[117] Importantly, the decision provides interpretive clarity on the source of power to make such an order. The decision eschews an interpretation that the power arises under HCR 4.24,[118] preferring the inherent jurisdiction of the court, supplemented by the expansive plenary powers conferred by HCR 1.6[119] to fashion bespoke orders, where there is no existing procedure ‘in the manner that the court thinks is best calculated to promote the objective of these rules’.[120] Per Venning J at [166]:
Further, at some stage in every representative proceedings, it will be necessary for the Court to address the issue of how any fund recovered in the class action is to be distributed. That will inevitably require the Court to consider the position of, and appropriate return to, the litigation funder. As the Supreme Court noted in Southern Response Earthquake Services Ltd v. Ross it is common for this Court to make orders approving settlements and distribution proposals. The Court has an adjudicative power in its protective or supervisory jurisdiction, and there is a need for the Court to exercise that jurisdiction in that context.
As a consequence of Simons v. ANZ Bank NZ Ltd, New Zealand courts have the power to make CFOs, and that power may be exercised at the appropriate time, likely at settlement or judgment.
In the absence of a statutory power, the jurisprudence in this area continues to accommodate and manage the innovations introduced by litigation funding. Set against this backdrop is the legislative reform debate. The NZLC has recommended a series of reforms that, if adopted, would codify the power of the court to apportion legal costs and funding commissions by providing:
a statutory power to make a cost sharing order;[121] and
if the court makes a cost sharing order enabling a litigation funder to receive a funding commission from class members who have not signed an agreement, it may:
set a provisional funding commission (or range of commissions) when making the cost sharing order;[122] and
vary the funding commission at a later date.[123]
It is important to understand the distinction between a CFO and a cost sharing order as proposed by the NZLC. There is a profusion of definitions for a CFO at common law, depending upon the precise content of the order and the stage of the proceeding when an order is sought. The order has been referred to as a commencement CFO,[124] settlement CFO,[125] judgment CFO,[126] an expense sharing order[127] and an equitable remuneration order.[128] In examining the definitional diversity that now exists, it is easy to become distracted by what has been referred to as the ‘triviality of labels’.[129] In this context, a CFO is a term of convenience used to describe a broad specie of orders whose function is to apportion litigation funding costs of a proceeding. The NZLC has recommended a cost sharing order, which departs from the orthodox formulation of a CFO.[130] It is a penumbral term that describes a kind of omnibus order, capturing all the ‘litigation costs of a class action (including the legal fees and funding commission) to be spread equitably among all class members, on the application of the representative plaintiff’,[131] and not merely an order that apportions the funding commission or funding expenses. Accordingly, the NZLC’s recommendations, if adopted, would significantly expand the court’s power to manage litigation costs generally and funder returns specifically.
The court has also considered the funding equalisation order (FEO) as an alternate cost-spreading mechanism. In Simons v. ANZ Bank NZ Ltd,[132] the Court succinctly summarised how an FEO operates:
CFOs can be contrasted with funding equalisation orders (FEOs). FEOs deduct an amount from the settlement or award paid to non-funded members that is equivalent to the amount they would have had to pay to the funder, had they entered the funding agreement. The amount deducted is then pooled and distributed pro rata amongst all class members, but not the funder. FEOs achieve equity amongst class members, but do not augment the sums paid to the funder.
The decision in Simons v. ANZ Bank NZ Ltd did not specifically deal with the availability of FEOs as a matter of law. However, it can be inferred that an FEO is available on the same basis as a CFO where the court ‘thinks it is best calculated to promote the objective of the HCR’.[133] There is typically a misplaced assumption that an FEO will reliably be superior to a CFO, on the basis that under an FEO the funder does not receive more than the total commission it would have received from the funded class members.[134] That assumption is misplaced particularly when accepted reflexively and without regard to the circumstances of each case.
Australian jurisprudence is instructive on this point: ‘a funding equalisation order is not always the appropriate counterfactual or comparator’ to a CFO.[135] The range of factors that weigh against an FEO in certain circumstances were summarised by the Court in Simons v. ANZ Bank NZ Ltd, referring to the plaintiff’s submissions:[136]
In Mr Salmon’s submission FEOs are inferior to CFOs. FEOs do not incentivise funders to invest in opt out proceedings, because they do not allow funders to collect a commission on unfunded class members’ recoveries or provide certainty as to potential returns at the beginning of the proceedings. Under FEOs the Court has less flexibility to amend the funding commission rates (FCRs). CFOs are simpler and easier to understand. The other advantage of a CFO is that it obviates the need for book building and ensures that class members are able to make better informed choices as to whether to opt out.
As can be seen, the common fund doctrine is in its nascency in New Zealand but is evolving in parallel with the courts’ recognition of the role played by litigation funders, the emergence of opt-out class actions and a burgeoning litigation funding market.
iv Common costs
The series of class actions against James Hardie in New Zealand have raised novel but consequential issues regarding costs incurred in concurrent or parallel class actions, alleging materially similar claims. In one of these cases a dispute arose as to whether the court should recognise and apportion costs incurred across separate, but materially similar, class proceedings that have been incurred for the common benefit of all claims; for example, where common experts give evidence on the same subject matter or parties seek to rely upon evidence filed in related or parallel proceedings in respect of common issues.
The issue arose in Cridge v. James Hardie in the context of three proceedings filed against a common defendant, James Hardie, for materially similar claims.[137] The plaintiffs in the Cridge proceeding were the first to proceed to trial, ultimately failing in their claims at first instance and incurring significant adverse costs. The second proceeding[138] settled and the third proceeding[139] is set down for trial in 2023.
At first instance the Court in Cridge v. James Hardie[140] held that common costs were incurred across all three proceedings but declined to apportion those costs, despite conceding that ‘there is, however, undoubtedly within the James Hardie evidence material that would fall within the concept of a common cost, being output that will be usable in whole or in part, directly or as relevant material, in the defence of all three claims’.[141]
The common costs decision is subject to an application for leave to appeal, as at the time of writing. The consequences of this decision on concurrent class actions are manifold and potentially profound, with, inter alia, the following issues arising:
the ruling disadvantages claims filed first-in-time by forcing those claimants to bear all the costs risks for common work and incentivises multiplicity of proceedings, so as to minimise the potential adverse costs risks burden on subsequent claims. Crucially, this finding does not appear to sit conformably with the object of the HCR ‘to secure the just, speedy, and inexpensive determination of any proceedings.’[142]
the decision does not resolve the potential risk of double recovery by a successful defendant where there is multiplicity of similar claims against them that are not heard together; and
the role of case management by the court where proceedings alleging similar claims against the defendant or defendants are run concurrently (or sequentially) and the appropriate role for consolidation orders.
The James Hardie series of class actions also raise the question of whether a bespoke class actions costs regime is necessary in New Zealand arising from the unique attributes of these types of claims, such as the cost multipliers, vulnerability of plaintiffs to adverse cost events and the general costs quantum involved. Alternatively, judicial guidelines or practice notes specific to class actions, akin to the approach taken in the Australian Federal Court, may assist the court in undertaking the complex task of cost assessment in these types of proceedings. Notably, the NZLC’s view is that a bespoke class action costs regime is not necessary at this time.
VI The year in review
The past year has seen progress in the ongoing debate over the appropriate regulation of litigation funding in New Zealand. The most prominent example of this maturing discourse is NZLC R147 and its comprehensive recommendations, which, if implemented, would create a new regulatory landscape for litigation funders in class actions. Relatedly, the judicial approach to litigation funding and class actions has demonstrated a willingness by the court to exercise its powers flexibly and creatively in order to fashion a bespoke, if ad hoc, response to the novel issues these cases bring in the absence of a statutory regime. Class actions have been the principle driver of this debate and the judicial response. The acceptance of CFOs,[143] and the consideration of novel issues such as common costs and set-aside orders[144] by the courts are three recent examples. Some contrast also exists when considering the backdrop of policymakers grappling with perceived issues related to enforcement against overseas-based funders and contractual terms submitting to the jurisdiction, while the court has maintained a generally non-interventionist approach to third party funding arrangements. The arrival of more funding competition in the market and the maturing discourse have created favourable conditions for statutory change but will require legislative determination to convert the debate into tangible reforms.
VII Conclusions and outlook
Recent years have seen incremental developments in support of a developing third party litigation funding market. These developments have aided in maturing the jurisprudence on the use of third party litigation funding in New Zealand. Class actions have been the touchstone of many of these recent developments. The acceptance of the common fund doctrine in the Simons v. ANZ Bank NZ class action, coupled with the comprehensive class action and litigation funding reform agenda advanced by the NZLC, are important milestones in the evolving architecture of New Zealand’s litigation funding landscape. In particular, NZLC R147 is an ambitious blueprint that, if adopted, would provide procedural clarity to help foster competition and reduce avoidable costs on procedural skirmishing over some aspects of currently untested processes and procedures. Depending on the final form of the new proposed regime, the proposed new litigation funding court approval requirements and certification recommendations may prove, if legislated, to be significant disincentives for litigation funders and claimants. If the hurdles are made too high they may result in discouraging investment in the jurisdiction, and may have other, unintended consequences, including by making the commencement of claims more cumbersome, expensive and uncertain for claimants and their funders as well as defendants.
Looking ahead, the immediate challenge appears to be ensuring that the government responds carefully and appropriately to NZLC R147. This can be successfully achieved by introducing a framework for the conduct of representative proceedings and use of third party litigation funding that strikes the right balance between achieving appropriate levels of consumer protection while minimising regulatory compliance costs and still encouraging competition among litigation funding providers. Once enacted the proposed new regime should hopefully provide greater certainty to New Zealand’s developing litigation funding market. Implementing a comprehensive regime for the conduct of class actions along with a statutory framework for third party litigation funding arrangements will no doubt represent a significant step towards facilitating better access to justice to more people across New Zealand.
As was stated by the Supreme Court in Southern Response v. Ross,[145] the objectives of representative actions are threefold; improving access to justice, facilitating the efficient use of judicial resources and strengthening incentives for compliance with the law. Providing clarity in relation to the permitted uses of third party litigation funding and laying down the rules for the conduct of representative proceedings will see all three of these objectives advanced and should result in tangible benefits to New Zealanders seeking to utilise the judicial system in the years ahead.
External version can be found here.
Notes
[1] Jason Geisker is a principal and Simon Gibbs is an associate at Maurice Blackburn Lawyers, the legal advisers to Claims Funding Australia Pty Ltd. Reproduced with permission from Law Business Research Ltd. This article was first published in December 2022. For further information please contact Nick.Barette@thelawreviews.co.uk
[2] Re Nautilus Developments Ltd (in liq) [2000] 2 NZLR 505 (HC).
[3] IBISWorld, Legal Services in New Zealand (July 2021), page 9; Omni Bridgeway Annual Report 2021, page 10.
[4] Omni Bridgeway Annual Report 2021, page 10.
[5] See New Zealand Law Commission (NZLC) IP45, Class Actions and Litigation Funding (December 2020)(NZLC IP45) at [14.24], which identifies 40 cases in New Zealand in which the plaintiff received litigation funding.
[6] IBISWorld, Legal Services in New Zealand (July 2021), pages 21 and 23.
[7] ibid., page 9.
[8] Unless recorded in a judgment or disclosed as part of a class action. Prior to the decision in Waterhouse v. Contractors Bonding [2013] NZSC 139, [2014] 1 NZLR 91, there was no common law obligation on a funded party to disclose the fact that it was receiving litigation funding.
[9] Funder of the Strathboss Kiwifruit Ltd v. Attorney General (kiwifruit) class action, one (of two) separate CBL Corporation Ltd class actions.
[10] Other domestic-based funders include Claims Resolution Services, Joint Action Funding Ltd, LPF Group Ltd, Risk Worldwide/My Insurance Claim and Tempest Litigation Funders.
[11] Claims Funding Australia Pty Ltd is a wholly owned subsidiary of Maurice Blackburn Lawyers, (Australia’s largest and most successful plaintiff class action law firm) and has funded the Ross v. Southern Response Earthquake Services class action, and Cridge v. Studcorp & James Hardie class actions.
[12] Formerly known as IMF Bentham, it is the funder of one (of two) separate CBL Corporation Ltd class actions.
[13] Funder of the Cooper v. ANZ Bank New Zealand Ltd class action.
[14] Funder of the Shadowclad class action, White v. James Hardie class action, Feltex class action, Intueri class action.
[15] Claims Funding Australia has no published minimum claim size.
[16] See NZLC IP45, at [10.39].
[17] NZLC IP45, page 13.
[18] ibid.
[19] NZLC IP45, at [14.38].
[20] NZLC IP45, at [14.32].
[21] Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91.
[22] Sage Securities Ltd v. Rood HC Wellington CIV-2009-485-1150, 11 November 2009.
[23] Patel v. Patel [2014] NZHC 2410.
[24] Williams v. Auckland Council [2015] NZCA 479, (2015) 7 NZ ConvC 96-013.
[25] NZLC R147, Class Actions and Litigation Funding (May 2022)(NZLC R147), at 368.
[26] NZLC R147, page 368.
[27] ibid., page 364.
[28] High Court Rules 2016, r 15.1(3); Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [30] and [32]; and Cain v. Mettrick [2020] NZHC 2125.
[29] High Court Rules 2016, r 15.1(1).
[30] High Court Rules 2016, r 5.45.
[31] High Court Rules 2016, r 14.1. Waterhouse v. Contractors Bonding [2014] 1 NZLR 91 at [52]-[53]. See also footnote 100. Also consider, the decision in Prattley Enterprises (2017) 23 PRNZ 484 recognised that a defendant may reserve its position to seek leave for any order to be made in the name of the funder, in the event an amount ordered is not paid. See also NZLC IP45 [15.50]-[15.56] and Falloon (as executors of the Estate of the Late Bligh) v. The Earthquake Commission [2020] NZHC 874 for an example of where a non-party costs order was made against a funder. See also NZLC IP45 at [19.19] footnote 24.
[32] Fair Trading Act 1986; and Consumer Guarantees Act 1993.
[33] Credit Contracts and Consumer Finance Act 2003; and Finance Markets Conduct Act 2013.
[34] Finance Service Providers (Registration and Dispute Resolution) Act 2008.
[35] Fair Trading Act 1986, ss.9-10.
[36] Fair Trading Act 1986, s12D.
[37] Fair Trading Act 1986, s13.
[38] Fair Trading Act 1986, s26A.
[39] Fair Trading Act 1986, ss.17-26 (as the case may be).
[40] For a helpful discussion of these threshold definitions see NZLC IP45 at [15.57]-[15.62].
[41] Finance Markets Conduct Act 2013, s.7.
[42] Credit Contracts and Consumer Finance Act 2003, s.7, to be read together with the definition of credit at s.6.
[43] Credit Contracts and Consumer Finance Act 2003, s.11.
[44] Consumer Guarantees Act 1993. The term ‘consumer services’ is used here as a term of convenience to describe the atomised definition that appears under the legislation by construing the separate terms ‘consumer’ and ‘services’ under s.2 of the Consumer Guarantees Act 1993.
[45] See NZLC IP45 at [15.62].
[46] NZLC IP45 at [15.6].
[47] See in particular Auckland City Council as Assignee of Body Corporate 16113 v. Auckland City Council [2008] 1 NZLR 838 (HC) at [45]–[46].
[48] NZLC R147, Recommendation 107.
[49] See Elias CJ in PricewaterhouseCoopers v. Walker [2017] 1 NZLR 735 at [118]-[119] for an articulation of the persistence of maintenance and champerty and the how the stay for abuse of process has emerged in that setting.
[50] Waterhouse v. Contractors Bonding Ltd [2014] 1 NZLR 91 at [30].
[51] High Court Rules 2016, r 15.1(3).
[52] Waterhouse v. Contractors Bonding Ltd [2014] 1 NZLR 91 at [31]-[32], referring approvingly to the Australian High Court decision in Jeffery & Katauskas Pty Ltd v. SST Consulting Pty Ltd [2009] HCA 43, [2009] 239 CLR 75 at [27] per French CJ, Gummow, Hayne and Crennan JJ, citing IH Jacob ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23 at 43.
[53] PricewaterhouseCoopers v. Walker [2017] 1 NZLR 735 at [56].
[54]Cain v. Mettrick [2020] NZHC 2125.
[55] Houghton v. Saunders (2008) 19 PRNZ 173 (HC) at [177]. For example, to satisfy security for costs or costs awards in the event a defendant succeeds in defending a claim. Balanced against this view are the concerns expressed by the Supreme Court in Waterhouse v. Contractors Bonding Ltd [2014] 1 NZLR 91 at [41] and PricewaterhouseCoopers v. Walker [2017] NZLR 735 at [114]-[122] (per Elias CJ in dissent).
[56] See Waterhouse v. Contractors Bonding [2014] 1 NZLR 91 at [28]. Nor was it the courts’ role to assess the fairness of any bargain between a funder and a plaintiff: see [48] and [76(f)].
[57] See for example, Paine v. Carter Holt Harvey Limited [2019] NZHC 1614; Southern Response Earthquake Services Ltd v. Southern Response Unresolved Claims Group [2017] NZCA 489 at [79]-[80]; Southern Response Earthquake Services Limited v. Brendan Miles Ross and Coleen Anne Ross [2020] NZSC 126 at [81] and [86]:
While the Court in Waterhouse said it was not the courts’ role “to act as general regulators of litigation funding arrangements”, the Court left open the scope of the courts’ supervisory role for litigation funding arrangements in relation to representative proceedings. That said, we consider it would be premature to say there is an expectation that any litigation funding agreement should routinely be provided to the court as part of an application under r 4.24(b), as the Law Society submits.
[58] Southern Response Earthquake Services Ltd v. Ross [2020] NZSC 126 at [81].
[59] Waterhouse v. Contractors Bonding Ltd [2014] 1 NZLR 91.
[60] Waterhouse v. Contractors Bonding Ltd [2014] 1 NZLR 91 at [27]-[29].
[61] Waterhouse v. Contractors Bonding Ltd [2014] 1 NZLR 91 at [48].
[62] Waterhouse v. Contractors Bonding Ltd [2014] 1 NZLR 91 at [57].
[63] Waterhouse v. Contractors Bonding [2014] 1 NZLR 91 at [45]-[46].
[64] PricewaterhouseCoopers v. Walker [2017] NZLR 735 at [122].
[65] Southern Response Earthquake Services Ltd v. Ross [2020] NZSC 126.
[66] Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2452 at [17]-[43].
[67] Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 3497.
[68] Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2452; Ross v. Southern Response Earthquake Services Ltd (No 2) [2021] NZHC 2453; and Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2451.
[69] See for example, Southern Response Earthquake Services Ltd v. Ross [2020] NZSC 126 at [12]-[44]; and Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2454 at [77].
[70] R147 Ko ngā Hunga Take Whaipānga me ngā Pūtea Tautiringa/Class Actions and Litigation Funding.
[71] Terms of Reference (18 November 2019); NZLC IP45 (4 December 2020); and Supplementary Issues Paper (30 September 2021) - IP48 Class Actions and Litigation Funding: Supplementary Issues Paper (NZLC IP48).
[72] NZLC IP45, at [14.37].
[73] Although it is not mandatory to provide such contractual indemnities as a part of a third party funding arrangement: see Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89 at [52].
[74] Again, this is not a requirement, and applications for security for costs provide a practical solution to any concerns a defendant might have in this sense: ibid. at [53].
[75] Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89 at [28].
[76] As discussed at Section II.iii of this chapter.
[77] ibid. at [48] and [76(f)], although these comments were limited to non-representative proceedings.
[78] See Southern Response Earthquake Services Ltd v. Ross 2020 [NZSC] 126 at [85].
[79] Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [76(e)]. See also at [56]–[57] and [61].
[80] Fostif v. Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203; [2005] NSWCA 83 at [94]–[116].
[81] Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [46].
[82] [2013] NZSC 89, [2014] 1 NZLR 91.
[83] ibid. at [28].
[84] ibid. at [28], [28], n 29 and [76(f)], n 92.
[85] Southern Response Earthquake Services Ltd v. Ross 2020 [NZSC] 126 at [85]; Note the Court in Waterhouse said litigation funding agreements should be disclosed ‘where an application is made to which the terms of the agreement could be relevant’: at [73] See also [75] and [76(c)]–[76(d)].
[86] Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [67]–[69].
[87] ibid. at [71].
[88] High Court Rules 2016, rr. 14.1, 14.6 and 14.7
[89] High Court Rules 2016, Schedule 2 and Schedule 3.
[90] High Court Rules 2016, r. 14.6(3)(a); see Kidd v. Van Heeren [2015] NZHC 3191 at [4], [6], [14]-[15] and [18].
[91] High Court Rules 2016, r.5.45; see also Saunders v. Houghton [2009] NZCA 610, [2010] 3 NZLR 331 at [35]–[36] where the Court relied on its inherent jurisdiction as the basis for making an order for security against a plaintiff in a representative proceeding that was supported by a litigation funder.
[92] Waterhouse v. Contractors Bonding [2014] 1 NZLR 91 at [29]; Walker v. Forbes [2017] NZHC 1212 at [71].
[93] NZLC R147, Recommendation 109.
[94] Waterhouse v. Contractors Bonding [2014] 1 NZLR 91 at [70].
[95] High Court Rules 2016, r.5.45(3)(a)(ii).
[96] Houghton v. Saunders [2014] NZHC 21 at [4]–[8]. Security was deposited in the trust account of the plaintiff’s solicitors.
[97] Strathboss Kiwifruit Ltd v. Attorney-General [2015] NZHC 1596.
[98] Houghton v. Saunders [2019] NZHC 2007 at [47]–[51].
[99] Houghton v. Saunders [2013] NZHC 1824 and White v. James Hardie New Zealand [2019] NZHC 188.
[100] Houghton v. Saunders [2019] NZHC 2007 at [51].
[101] High Court Rules, rr. 14.1; Waterhouse v. Contractors Bonding [2014] 1 NZLR 91 at [52]-[53]. See also NZLC IP45 [15.50]-[15.56] referring to Dymocks Franchise Systems (NSW) Pty Ltd v. Todd (No 2) [2004] UKPC 39, [2005] 1 NZLR 145; Mana Property Trustee Ltd v. James Developments Ltd (No 2) [2010] NZSC 124, [2011] 2 NZLR 25 at [11] and Falloon (as executors of the Estate of the Late Bligh) v. The Earthquake Commission [2020] NZHC 874.
[102] NZLC R147 Recommendation 109(c).
[103] NZLC R147 at Recommendation 112.
[104] NZLC R147 at Recommendation 109(b).
[105] NZLC R147 at [17.80].
[106] See Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2454 at [23]-[29] for a precis of the procedural background of the Ross class action and the scope of the order sought.
[107] In the context of a related novel application for a set aside order that was denied, the High Court in Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2454 at [63]-[64] made a favourable observation that the court had the power to make a CFO, a set aside order or a similar cost sharing order without determining the question.
[108] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836
[109] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836 at [165]-[168].
[110] Southern Response Earthquake Services Limited v. Brendan and Colleen Ross [2020] NZSC 126.
[111] Southern Response Earthquake Services Limited v. Brendan and Colleen Ross [2020] NZSC 126, [82]-[83].
[112] Southern Response Earthquake Services Limited v. Brendan and Colleen Ross [2020] NZSC 126, [81].
[113] Southern Response Earthquake Services Limited v. Brendan and Colleen Ross [2020] NZSC 126, [82].
[114] Southern Response Earthquake Services Limited v. Brendan and Colleen Ross [2020] NZSC 126, [60].
[115] Southern Response Earthquake Services Limited v. Brendan and Colleen Ross [2020] NZSC 126.
[116] Ross v. Southern Response Earthquake Services Ltd [2019] NZCA 431 at [110] and see also [105]-[106].
[117] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836 at [164]-[168].
[118] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836 at [160].
[119] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836 at [165]-[168].
[120] High Court Rules 2016, r 1.6(2).
[121] NZLC R147, Recommendation 66.
[122] NZLC R147, Recommendation 67(a).
[123] NZLC R147, Recommendation 67(b).
[124] Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2454 at [26]; Davaria Pty Ltd v. 7-Eleven Stores Pty Ltd (2020) 384 ALR 650, [21].
[125] Davaria Pty Ltd v. 7-Eleven Stores Pty Ltd (2020) 384 ALR 650, [22]-[25] (referred to with approval in Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836) Asirifi-Otchere v. Swann Insurance (Aust) Pty Ltd and Anor (No 3) [2020] FCA 1885 (referred to with approval in Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2454).
[126] Davaria Pty Ltd v. 7-Eleven Stores Pty Ltd (2020) 384 ALR 650, [28]-[30].
[127] Lenthall v. Westpac Banking Corporation (No 2) [2020] FCA 423, at [3]; Webster (as trustee for the Elcar Pty Ltd Super Fund Trust) v. Murray Goulburn Co-Operative Co Ltd (No 4) [2020] FCA 1053 at [110]; and Uren v. RMBL Investments Ltd (No. 2) [2020] FCA 647, [48] (referred to with approval in Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2454).
[128] Evans v. Davantage Group Pty Ltd (No 3) [2021] FCA 70, [49].
[129] Evans v. Davantage Group Pty Ltd (No 3) [2021] FCA 70, [49].
[130] The proposed cost sharing order is similar in terms and scope to the expense sharing order proposed in the Australian Federal Court Class Actions Practice Note (GPN-CA) at [15.4]. For a discussion of this type of order by reference to the GPN-CA, see also Lenthall v. Westpac Banking Corporation (No 2) [2020] FCA 423 at [3].
[131] NZLC R147, Recommendation 66.
[132] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836 at [144].
[133] High Court Rules 2016, r 1.6(2).
[134] Liverpool City Council v. McGraw-Hill Financial [2018] FCA 1289, [59] (per Lee J).
[135] Uren v. RMBL Investments Ltd (No. 2) [2020] FCA 647, [65].
[136] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836 at [145]
[137] Cridge & Anor v. Studorp Limited (CIV-2015-485-594); and Fowler & Anor v. James Hardie New Zealand (CIV 2015-485-773)
[138] White v. James Hardie CIV-2015-404-2981 (White proceeding).
[139] Metlifecare Retirement Villages Limited v. James Hardie CIV-2015-404-3080 (the Waitakere proceeding).
[140] Cridge v. James Hardie [2022] NZHC 2024.
[141] Cridge v. James Hardie [2022] NZHC 2024 at [16].
[142] High Court Rules, r. 1.2.
[143] Simons v. ANZ Bank NZ Ltd [2022] NZHC 1836.
[144] Ross v. Southern Response Earthquake Services Ltd [2021] NZHC 2454.
[145] Southern Response Earthquake Services Limited v. Brendan and Colleen Ross [2020] NZSC 126, at [36]-[40].
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