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Claims Resolution Services Ltd v O'Hara-Safanov [2017] NZDC 11513

Published 20 October 2017

Contract — Litigation finding — whether misrepresentation — self represented litigant — costs. The defendant received funding for litigation against her insurance company. The dispute was resolved at mediation and the defendant was awarded $565,000 which included an award of $73,000 for costs. The defendant paid the plaintiff $54,000 and a dispute arose over whether the plaintiff was owed further payment under contract. The plaintiff sued on contract which included terms that the defendant would pay a 12 percent commission to the plaintiff, as well as all costs and disbursements. The defendant claimed that she believed the agreement to be what she had seen advertised by the plaintiff - a 10 percent commission and costs capped at $10,000. The issues for the court to determine were: whether the contract sued under applied; if it did apply, whether the defendant was misled or whether there were material misrepresentations that led to unfairness; and if the contract sued under did not apply, whether the defendant was unjustly enriched by the costs award made at the mediation with her insurer. The court found that the contract sued under by the plaintiff was a binding contract that that the defendant was required to pay the 12 percent commission and all costs and disbursements. The court further found that the defendant was aware of the details of the contract, and that there was no misrepresentation made by the plaintiff. As a consequence of this finding, the question of unjust enrichment was not considered. The court ordered the defendant pay the further $96,067.90 owed under the contract, and awarded costs to the plaintiff of $35,120.23. Costs were awarded taking into account the fact that the defendant was a self-represented litigant, the frivolous nature of the defence and the defendant's overall conduct in defending the claim. Judgment Date: 31 May 2017.

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