CHIP N REPAIR LIMITED v IAG NEW ZEALAND LIMITED [2022] NZHC 2047

CHIP N REPAIR LIMITED v IAG NEW ZEALAND LIMITED [2022] NZHC 2047 [18 August 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-004-1415[2022] NZHC 2047BETWEEN CHIP N REPAIR LIMITEDPlaintiffAND IAG NEW ZEALAND LIMITEDDefendantHearing: 11 July 2022Appearances: G Shand for the PlaintiffD J Friar and S R Hiebendaal for the DefendantJudgment: 18 August 2022JUDGMENT OF HARVEY JThis judgment is delivered by me on 18 August 2022 at 4.30pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:Grant Shand, Barristers & Solicitors, AucklandBell Gully, AucklandIntroduction[1] Chip N Repair Limited provides a windscreen repair service. It alleges that inAugust 2021, IAG New Zealand Limited, trading under various subsidiary entities,breached s 13(i) the Fair Trading Act 1986.1 CNR alleges that IAG did so bymisrepresenting during a phone call to a policy holder, Amren Tuhoro, that hiswindscreen repair had to be completed by IAG's preferred repairers (which CNR isnot), when the practice is that policy holders can choose any service provider.[2] CNR claims that, as a result of that misrepresentation, it has suffered a loss of$1,098.25 from Mr Tuhoro. CNR also alleges generalised losses, a further estimated$24,674 from other clients affected by similar misrepresentations based on an estimateof two repairs and one replacement per month, but has not provided particularsidentifying the misrepresentations nor an amended statement of claim.[3] IAG is the parent company for State Insurance and other insurance companiesoperating in New Zealand. IAG denies the claim and instead seeks summary judgmentagainst CNR, arguing that the cause of action cannot succeed as the representationalleged was never made to Mr Tuhoro. Even if it had been, which is denied, it was notmisleading. IAG also submits that there was no reliance by the policy holder, MrTuhoro, on the representation and so there was no loss suffered as a result. They haveprovided a full transcript and audio recording of the phone call at issue in support oftheir application for summary judgment.Procedural history[4] CNR commenced the proceeding on 31 August 2021, seeking a declarationthat IAG is in breach of s 13 of the Fair Trading Act, and compensation for what itclaimed are consequential losses. On 30 September 2021, CNR also applied underr 4.24 of the High Court Rules 2016 to sue as a representative of similarly affectedindependent repairers who do not have the resources to bring claims themselves.1 Referred to for convenience as CNR and IAG respectively.[5] On 29 November 2021, IAG filed both their notice of opposition and anapplication for summary judgment, and the next day filed an application to transferthe proceedings from the District Court to this Court. The latter application was notopposed by CNR. Accordingly, by minute dated 16 February 2022, the proceedingswere transferred to this Court.2[6] In that same minute, Wylie J directed that the application to bringrepresentative proceedings should be heard after the determination of the summaryjudgment application, recording that he was "not persuaded that the issues are identicalor even that the merits of the matter are likely to have any great bearing on eitherapplication".3 Accordingly, the summary judgment application was scheduled for aone-day hearing on 16 May 2022.[7] However, COVID related delays on the morning of the hearing meant that, asPowell J recorded in a minute on 16 May 2022, there was no choice but to adjourn thefixture to 11 July 2022.Background[8] As foreshadowed, IAG is the parent company behind State Insurance (interalia) and, it is said, is New Zealand's largest insurer. Ms Cooper, an executive managerof IAG, stated in her affidavit of 29 November 2021 that, among other services, IAGoperates call centres where customers can make claims under the respective policies.Under the State Insurance brand, IAG provides car, house, contents, travel, businessand insurance under 900,000 policies for more than 400,000 customers.[9] CNR is a small company which carries out motor vehicle glass repair services.In his affidavit of September 2021, Okesene Ale, the sole director and shareholder ofthe company, confirmed that CNR was a trade name he used specialising in motorvehicle glass repairs. He incorporated the plaintiff company in 2020 under the samename. Mr Ale stated that about 95 per cent of his business is for customers that havemotor vehicle policies with windscreen insurance cover. He further stated that dealing2 IAG New Zealand Ltd v Chip N Repair Ltd HC Auckland CIV-2021-404-002372, 16 February2022 (Minute of Wylie J).3 At [8].with IAG via its brands State, AMI and Lumley is different to other insuranceproviders, as IAG is averse to insured persons using services other than its preferredsuppliers, which CNR is not, despite their promotional material stating that customershave the right to select their repairer.[10] IAG accepted that in 2006 it was subject to criminal proceedings brought bythe Commerce Commission under s 13(i) of the Fair Trading Act after IAG had misledcustomers about their right to choose a windscreen repairer. The circumstances of thisappear to be that State Insurance brochures confirmed that policy holders could chooseany company to carry out repairs but contact centre staff were telling customers thatthey had to use Smith and Smith. IAG pleaded guilty to the 30 charges and wasconvicted and sentenced by Judge A-M J Bouchier on 31 August 2006.4The evidence for IAGSmith's insurance policy[11] As Ms Cooper in her affidavit, and attaches as an exhibit, the standard policywording provides that:What you get if we accept your claim RepairableIf the car is economic to repair in our opinion, we have the option to:1. arrange for the car to be repaired as near as possible to the condition it wasin before the loss happened, using parts and practice appropriate in theNew Zealand repair industry, or2. pay you the cost of repairs as estimated by our assessor.(emphasis added)[12] Ms Cooper confirmed that under this policy, State has an option either toarrange for a windscreen repair to be done by a repairer that State chooses, or to paythe customer to get the windscreen repaired themselves. As a matter of practice, shesays, State offers customers the choice as to where they will have their windscreen4 Commerce Commission v IAG New Zealand Ltd DC Auckland CRI-2006-004-013973, 31 August2006.repaired. Under option 1, if the customer is happy to go with a repairer in State'sapproved repairer network, then the customer will be directed to that repairer. Underoption 2, if the customer would prefer to select their own repairer, Ms Cooper statedtheir practice is to allow them to do so, although State will request a quote for the workin advance to ensure that the cost is reasonable.[13] State has an approved repairer network for claims under its car insurancepolicies. If repairs are carried out by an approved repairer, then there are benefitsunder the policy including a streamlined process (i.e. not requiring a quote being givento State for the work) and a repair quality guarantee from State for the work done forthe time the policy holder is insured by State.[14] State's website states:How do I get my windscreen fixed?If you've got a chip or crack that you need fixed, you can lodge a claim directlywith one of our preferred supplier. Phone 0800 80 24 24 and follow theprompts to 'windscreen claim' - you will be connected directly with a preferredsupplier. You can also say 'windscreen' to Sam our ChatBot and he can helplodge your claim for you.[15] On a page headed "Understating the Motor claim repair process and timing":3. Select a repairerIf we accept your claim, we'll provide a list of preferred repairers to assess thedamage to your vehicle and provide a quote When selecting your repairer, we'll provide suggestions of our localpreferred repairers for you to choose from. Ultimately, it's up to you to decidewhere to get your repairs done and you don't have to use one from the list.However, there are great benefits to having your repair carried out by one ofour preferred repairers, like lifetime guarantees on repairs and workmanship.4. Repairer assesses damageOnce you've selected your repairer and taken (or towed) your vehicle to them,they'll assess the damage. If you've chosen one of our preferred repairers,they'll be in touch to schedule your repair.If you've chosen a non-preferred repairer, they'll send us a quote for ourassessors to look over and we'll let you know if the repair costs are accepted.Once accepted you will be able to discuss scheduling in your car to be fixedwith the repairer.If your car is not repairable, we'll be in touch to discuss the total losssettlement.[16] Smith & Smith and Novus are among State's approved repairers forwindscreen damage. CNR is not an approved repairer.The call with Mr Tuhoro and Mr van Komen[17] At the centre of the dispute, and the context in which the allegedmisrepresentation was made, is a phone call on 23 August 2021, between Mr Tuhoroand a State representative, named Lucky, regarding repair of Mr Tuhoro's windscreenunder his State insurance policy. For the majority of the call a Mr van Komen spokeas Mr Tuhoro's authorised representative. CNR submitted that in the course of thephone call Lucky misrepresented to Mr van Komen, and thus to Mr Tuhoro, that heonly had two options to repair his windscreen: Smith & Smith or Novus.[18] IAG has provided a transcript of the call in support of its application, as wellas an audio file, which had been recorded as is standard practice for calls to the callcentre. Ms Cooper stated that Mr Tuhoro had not personally raised any complaint orissue with IAG regarding his claim.[19] Mr Tuhoro is a customer of State who had a "Car Comprehensive" insurancepolicy, which was taken out on 16 April 2021, insuring a 2010 Mitsubishi RVR Wagonand which included windscreen cover. Ms Cooper also provided evidence about MrTuhoro's policy, which was on the standard State insurance policy wording. This, sheconfirmed, showed that State had the option to arrange for the windscreen to berepaired or instead to pay for the cost of repairs, with an additional guarantee forrepairs performed by State's approved repair network.[20] In the call at issue, Mr van Komen, apparently Mr Tuhoro's cousin, began byexplaining that he was calling to make a claim after a stone cracked his windscreen.He stated that his cousin, Mr Tuhoro had added him on his policy. Lucky explainedto Mr van Komen that as the policy holder, Mr Tuhoro will have to call Mr van Komento give him authority to make the claim. Mr Tuhoro eventually joined the call andgave the authority.[21] Relevant for this claim, Lucky stated to Mr Tuhoro when he joins that call that:Lucky: I don't have any issue of sending your – I'll fill in the form to Novusin the area to get them to contact you for repair of the windscreen damage foryou.Mr Tuhoro: That's fine. Yes.Lucky: Ok. No issue at all. I will Because you do have windscreenextension cover, no excess on that so I don't need to lodge any claim for you.Mr Tuhoro: Ok. Thank you.Lucky: Right. Ok. So what I'm going to do to fill I the form to send to Novusor Smith & Smith in the area and they will contact you as soon as the lockdownis over.Mr Tuhoro: Yes, that's fine.[22] Mr Tuhoro then left the call while Lucky attempted to locate a Novus branchin the area. Mr Komen stated that Mr Tuhoro had to leave for a work call and that hecould complete the discussion for him. Lucky confirmed that there was no difficultywith that. The conversation then continues:Lucky: Ok. There's a Novus Plus in – the closest one to you is 15 Palm Gove,[inaudible] Tauranga.Mr van Komen: Ok. That's good.Lucky: Yes. Yes. Ok. Right.Mr van Komen: That's my only two options. Smith & Smith or Novus. That'sok if that's my only two options. That's ok. If that's close.Lucky: We may have other options as well.Mr van Komen: Oh, ok.Lucky: But you think they are close enough. So just use them.Mr van Komen: I can use them but if that's my two what other option Ihave?Lucky: Let me see. We have Tauranga Windscreen Atlas.Mr van Komen: Ok. Ok. So only those three. I can only use those ones.Lucky: Yes.Mr van Komen: Ok. Only those options. Yes.Lucky: So should I send the form to Novus now for you?Mr van Komen: Yes. Please. Yes.[23] Mr van Komen then thanked Lucky. Lucky asked if there was anything elseState could help Mr van Komen with. The call continued:Mr van Komen: I saw on Facebook – that's why I called my cousin and wedo the windscreen because there's a Facebook app. A Facebook app.Lucky: Yes.Mr van Komen: A business was saying – you know – they do the windscreenfor you and so that's why I call in. Can I use that business or do I have to usethese ones.Lucky: What other business? What's their name?Mr van Komen: It's – let me look at the page. Hold on – one second let melook at the Facebook. That's why I call – I want to use them but it's ok if Idon't. Let me see real quick, Chip. It's C-H-I-P Chip N Repair.Lucky: Ok, Chip N Repair Windscreen. I think that the one Novus. Hold on.We can look for you – I think they advertising for Novus people.Mr van Komen: No it's a Chip N Repair Facebook app [inaudible]. If youwant to fix it but I'm not sure if I can use them or not.Lucky: Komen what I can advise you is that they can do but they need to senda quote to us first. So it may take more time for you to get a repair, than forme to send directly to Novus right now.Mr van Komen: Oh ok.Lucky: because for any other, ah, not approved repairer from us they have tosend a quote to us first. And then you need to wait for us to approve and thenthey will contact you after that to get your windscreen repaired or replaced.So for the Novus here they are a big company. So one will contact you rightnow if they have the staff working at the same time as well. The Novus staffwill contact you to overnight [inaudible] time and they overnight everything.So when the Covid is down to level 2 they will organise that for you to comein and just replace or repair for you right away so you don't have to wait.Mr van Komen: Ok.Lucky: So that is the advantage of for people like Novus or Smith &Smith inthe area of Tauranga [inaudible] They work with IAG so they do it quicker foryou.Mr van Komen: That's nice.Lucky: Yes. Alright? So I'll fill in the form and send to Novus right now foryou? Alright?Mr van Komen: Yes. Thank you.[24] Following the call, Mr Tuhoro sent a text to CNR stating:Hey Junior [Mr Ale],Just got off the phone with the state claims agent and she's sent through myclaim off to the closes [sic] Novice or Smith and Smith in my area. Sorry butunable to use you.Enjoy your day and stay safe through this level 4 lock down. CheersThe evidence for CNPAffidavit of Amren Tuhoro[25] Mr Tuhoro stated in a brief affidavit dated 19 January 2022 that, after the phonecall with IAG, he was under the impression and understanding that Smith &Smith,Novus or Tauranga Windscreens were the only effective options he could use.Accordingly, he confirmed that he went with Novus to fix his windscreen but statedthat if he had known that he could use CNR he would have done so.[26] Mr Ale stated that, as a result, he lost Mr Tuhoro as a new customer worth$1,098.25 including GST.Alleged loss of other customers[27] Regarding the other claimed losses, which are alleged but not particularised inthe statement of claim, Mr Ale has provided affidavit evidence of several instances.[28] Mr Ale stated that on 5 June 2020, Marguerite Toy, who was onsite at a CaltexStation in Hamilton where CNR was operating, agreed to have her windscreen chiprepaired. On calling State while still onsite at the Caltex, a claims consultant told MsToy that IAG cannot use CNR because they could not guarantee their workmanship asthey are not one of their approved repairers.[29] Later that day, Mr Ale emailed IAG's area manager to notify them of the issue.He noted in his email that "we later found out that the customer did NOT have glasscoverage" (which Ms Cooper has also noted in her affidavit) and was happy to paycash. Ms Adlam, team leader of the Customer Claims, responded on 16 June 2020:I have made clear to the consultant the conversation they had with yourtechnician was not acceptable I have provided the claims consultant withappropriate feedback and customer conversations to use when taking a callfrom a non-aligned repairer and out customer. I have outlined and referred totraining material to further highlight it's the customer's choice as to who theywish to use for their repairs and in the instance where the customer is alreadywith the non-aligned repairer, the customer has made their choice and wesimply must confirm policy coverage and advise no guarantee or repair andcontinue with no further discussion about the repairer necessary.Further to this I also felt this was an opportune time to remind out claimlodgement teams about the conversations they have with our customers whendiscussing suppliers/repairers and they must "offer" our preferredsupplier/repairer network to the customer not "recommend" I will be takingthis up with my colleagues to reinforce within their own team.[30] On 28 July 2021, Mr Ale deposed that he called State to make a claim afterhaving been given authorisation by a Ms Heather to act on her behalf. The agent askedhim if he would like to go with "NOVUS or Smith and Smith?". When he asked ifthose were his only two options, she responded "Yeah". Mr Ale has provided atruncated transcript of the call.[31] On 3 September 2021, Mr Ale stated that a Ms Heatherington reached out tohim due to a promotional advertisement that CNR put on Facebook. Mr Ale attacheda text from her which explained that she was told that she could not go with CNR:I came across the Facebook post from chip n repair as I'd just got a chip it wasperfect timingmade contact with them and got a reply within minutes andby the next day a phone call from them to confirm and connect woth [sic] myinsurance company which is bnz [an insurance company also connected toIAG] to get the detailsI gave them chip n repairs name and phone numberand the bnz person said they couldn't find it and it's possibly not a realcompany and I should go woth one of their repairers being smith and Smithor novas..I believed chip n repair must be fake and I must go with Smith andSmith or novas if I want 6he [sic] chip fixed.it was very confusing for me andif I hadn't been for chip n repair calling me back I would have been leftthinking I was lucky to not be scamed [sic].[32] Mr Ale claimed he lost a new customer worth $739.45 and $200 in advertising.[33] Finally, Mr Ale stated that on 3 September 2021, an Amber Brown similarlyreached out to CNR due to the Facebook ad, but was told when making a claim thatshe could only use them if Smith & Smith or Novus do not have the right windscreen.He attached a transcript of an audio recording which reads:Amber: Um ASB [an insurance company linked to IAG] is saying that I can'tgo through you. They're saying that you're not an authorised umm dealer oftheirs and so unless Smith & Smith or Novus don't have the windscreen thenthat's the only time that I can go through you.Mr Ale: No no no uhhhhhsoman this is funny. This happens to us all thetime.[34] Mr Ale stated that other repairers face similar issues, and attaches a letter fromAstrofix in Queenstown, another windscreen repair business, which claimed it hassimilar issues.Affidavit of Daniel Gerard[35] Daniel Gerard, who operates Astrofix, filed an affidavit in opposition tosummary judgment dated 18 January 2022. Referring to exhibits attached to Mr Ale'soriginal affidavit, Mr Gerard pointed to two text messages from potential customershe lost who were told by their insurers they had to use Novus and Smith & Smithrespectively. He also has had his MP write a letter to the Minister of Commerce whichhe attached identifying issues about IAG affecting his business, which is similarlyattached. Mr Gerard stated that he estimated that he lost two jobs per month by reasonof IAG incorrectly telling customers that they have to use Smith and Smith or Novus.[36] In an affidavit in reply to Ms Cooper's affidavit, dated 18 January 2022, MrAle states that he called State to make a claim for his car which is insured with them.He attached a transcript of the call, dated 17 January 2021, between himself and thecustomer representative, Roy, which relevantly reads:Roy: I'll put you through to Novus this time. They're pretty quick. Andthey'll give you a call ASAP. Hopefully today. And book a time with you andfix your windscreen.Mr Ale: Is novus and smith and smith the only two options I have?Roy: No we have Instant Windscreens. We have Instant Windscreens, Smithand Smith and novus.Mr Ali: Ok so those are the three options I can use aye?Roy: Yup.Mr Ale: Ok I'll use uhhh I guess if those are the only three options, I guessI'll use Novus.Roy: So they're like our preferred ones. So things will be pretty quick.Mr Ale: Ok.[37] Mr Ale stated that he would suffer a loss of $138 for that job.Legal framework and principles[38] Rule r 12.2(2) of the High Court Rules 2016 provides that:(2) The court may give judgment against the plaintiff if the defendantsatisfies the court that none of the causes of action in the plaintiff'sstatement of claim can succeed.[39] The law applicable to the summary judgment application is well settled. TheCourt of Appeal in Stephens v Barron5 confirmed the approach to summary judgmentas set out by Elias CJ in Westpac Banking Corp v M M Kembla New Zealand Ltd:6(a) The defendant has the onus of proving on the balance of probabilitiesthat the plaintiff cannot succeed. Usually this will arise where thedefendant can offer evidence which is a complete defence to theplaintiff's claim.(b) An application for summary judgment will be inappropriate wherethere are disputed issues of material fact or where material facts needto be ascertained by the Court and cannot confidently be concludedfrom affidavits. It may also be inappropriate where ultimatedetermination turns on a judgment able to be properly arrived at onlyafter a full hearing of the evidence.(c) The Court must be satisfied that none of the claims can succeed. It isnot enough that they are shown to have weaknesses. The assessmentis not to be arrived at on a fine balance of the available evidence aswould be appropriate at a trial.(d) The residual discretion of the Court to refuse summary judgmentwould be properly invoked to avoid the oppression which wouldotherwise result if an application by a defendant for summaryjudgment would pre-empt a plaintiff exercising the right to amend thepleadings.(e) Summary judgment should not be applied for unless the substantivemerits of the case are clear and capable of summary disposal.(footnotes omitted)[40] As the Court of Appeal highlighted, a defendant seeking summary judgmenthas a considerable burden to discharge.7[41] Section 13(i) of the Fair Trading Act 1986 provides that:13 False or misleading representationsNo person shall, in trade, in connection with the supply or possible supply ofgoods or services or with the promotion by any means of the supply or use ofgoods or services,—5 Stephens v Barron [2014] NZCA 82 at [9].6 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).7 Stephens v Barron, above n 5, at [9].(i) make a false or misleading representation concerning the existence,exclusion, or effect of any condition, warranty, guarantee, right, or remedy,including (to avoid doubt) in relation to any guarantee, right, or remedyavailable under the Consumer Guarantees Act 1993; or[42] Accordingly, the Court must be satisfied that CNR's claim under this section,even if amended, cannot succeed.CNR's submissions[43] Mr Shand, for CNR, submitted that this is not a case where all claims areclearly hopeless, and that amendment can cure all issues. It is, he contended, too earlyin the process to summarily dismiss the proceeding, particularly given the effect ofissue estoppel.[44] Mr Shand stated that CNR is a small independent windscreen repairer. At thisstage in proceedings, he submitted that CNR has identified and provided someevidence about IAG misleading policy holders about their ability to choose theirwindscreen repairer and that there will be much more evidence on the completion ofdiscovery.[45] Mr Shand argued that in its promotional material, public statements, and inhouse training manual, IAG states that it is the customer's choice as to who they wishto use for their repairs. He stated that a further email from 16 June 2020 from the IAGteam leader affirmed that it is the customer's choice as to their repairer.[46] Mr Shand submitted that contrary to those representations, IAG has (to CNR'scurrent knowledge and on their current evidence) on seven occasions from 2017 to2022, told individuals that they had to deal with only Smith and Smith or Novus orTauranga Windscreens.[47] Mr Shand further contended that in 2006, IAG pleaded guilty to 30 breachesof s 13(i) of the FTA after the District Court found that IAG had misled customersabout their right to choose a windscreen repairer when making an insurance claim. Inthat case, IAG material represented to customers that they were able to choose theirwindscreen repairer, while IAG call centre staff had told a number of customers thatthey had to use Smith &Smith for the work. This, Mr Shand says, is very similarconduct to that evidenced in this present case.[48] Mr Shand argued that IAG's assertions that it has the right to choose the policyholder's repairer cannot be reconciled with its statements that it is the customer'schoice as to who they choose to carry out repairs. IAG's position also cannot bereconciled with the District Court decision in 2006.[49] In any event, Mr Shand submitted, IAG only considers the allegedrepresentations made to Mr Tuhoro contained in the statement of claim. Mr Shandargued that there is a conflict in evidence: Mr Tuhoro says he understood that he couldnot use CNR and so did not do so because of what IAG told him. At the very least,Mr Shand says, IAG dissuaded Mr Tuhoro from using CNR. The matter is accordinglynot appropriate for summary judgment.[50] Finally, Mr Shand argued that IAG does not comment substantively on theother alleged representations to other customers. The claim is capable of amendment,if required, and Mr Gerard could be added as a plaintiff, if required.IAG's submissions[51] Mr Friar, counsel for IAG, submitted that the cause of action cannot succeed.He suggested, drawing on Tipping J's comments in Marcol Manufacturers Ltd vCommerce Commission, that to establish a breach of s 13(i), CNR must prove that:8(a) IAG made a representation;(b) in trade;(c) in connection with the supply of services;(d) about the existence, exclusion or effect of a right, and8 Marcol Manufacturers Ltd v Commerce Commission [1991] 2 NZLR 502 at 505 and 507.(e) the representation was objectively false or misleading to a reasonable personin the position of the recipient, applying a reasonable degree of common sense.[52] Citing Godfrey Hirst NZ Ltd v Cavalier Bremworth, Mr Friar submitted thatwhere there have been several representations, the "dominant message" or "generalthrust" of those representations is of "crucial importance" to determining whether theyare misleading.9 Related representations cannot be isolated and analysed separately,he contended. Mr Friar accepted that IAG was acting in trade in connection with thesupply of services. However, IAG did not make a false or misleading representationabout Mr Tuhoro's rights under the Policy and did not cause loss to CNR.[53] Mr Friar submitted that the central issue is whether IAG correctly representedMr Tuhoro's rights under the Policy during the telephone call on 23 August 2021 toMr Tuhoro and his authorised representative Mr Komen van Komen. He contendedthat the evidence demonstrated that IAG did not make the alleged representation, nordid they make any false or misleading representations. Lucky (IAG's representative)explicitly said that Mr Tuhoro could use windscreen repairers other than Smith &Smith and Novus, and confirmed that Mr Tuhoro could use CNR, provided a quotewas approved in advance. Mr Tuhoro's affidavit where he stated that he was underthe impression that "Smith & Smith, Novus or Tauranga Windscreens were the onlyeffective options I could use" is irrelevant. The test under s 13 is objective and cannotwithstand a reading of the call's transcript. His text sent after the phone call statingthat he was unable to use CNR did not reflect what he and Mr van Komen had beentold.[54] Mr Friar further submitted that even if IAG had made the allegedrepresentation (which it did not), that representation would not have been misleadingas, under their Policy, IAG was entitled to choose who repaired the windscreen. Sothe alleged representation, even if made, would have accurately reflected Mr Tuhoro'srights. Under the Policy, IAG had the ability to choose whether to arrange for anauthorised repairer to complete the work or to pay for the reasonable cost of a repaircarried out by another repairer. IAG arranged for Novus to do so after confirming that9 Godfrey Hirst NZ Ltd v Cavalier Bremworth [2014] NZCA 418, [2014] 3 NZLR 611 at [59].it would be convenient and acceptable to both Mr Tuhoro and Mr van Komen. IAGhad also said that the repair could be carried out by CNR if a quote was provided inadvance and IAG approved. So, according to counsel, all representations wereaccurate as to Mr Tuhoro's and IAG's respective rights under the policy.[55] Further, IAG's conduct has not, Mr Friar argued, caused CNR to suffer loss.Section 43 of the Fair Trading Act requires, as set out in Red Eagle Corporation Ltd vEllis, that the recipient of the misrepresentation was actually misled and that it was aneffective or operating cause of loss.10 Counsel submitted that Mr van Komen decided,for Mr Tuhoro, to use a windscreen repairer other than CNR because it was moreconvenient. That decision was not made on the basis of the alleged misrepresentation,so there is no causal link to the loss claimed. Moreover, he cannot have been misledas there was no misrepresentation as to Mr Tuhoro's rights under the Policy.[56] Finally, on the basis of the estimated additional $24,674 claimed from otherclients that were diverted by misrepresentation(s) by IAG, Mr Friar contended thatnothing further is pleaded other than a vague assertion that cannot succeed.[57] After the hearing, Mr Friar filed a memorandum on 15 July 2022 in responseto discussion at the hearing on the point of issue estoppel. He emphasised that ifsummary judgment is granted, an issue estoppel would arise in relation to the allegedmisrepresentations made to Mr Tuhoro only. An issue estoppel would not arise forany other customer. Entering summary judgment would not result in an issue estoppelpreventing separate proceedings from being brought for alleged misrepresentations toother customers. IAG would defend any such claim if it did arise.Discussion[58] In an application for summary judgment on the part of the defendant, as set outabove in r 12.2(2), the Court may give judgment against a plaintiff if the defendantsatisfies the Court that none of the causes of action in the plaintiff's statement of claimcan succeed. The pleadings as set out in the statement of claim must be the focus,although noting any scope for amendment.10 Red Eagle Corporation Ltd v Ellis [2010] NZSC 20 at [29].[59] The case that CNP submitted at the hearing and in submissions and the causeof action as set out in the statement of claim are different. At the hearing, Mr Shandredirected the focus away from the phone call and the representation made to MrTuhoro to a more general claim that IAG was engaging in a pattern of behaviourgenerally and speaking to evidence of other alleged misrepresentations. Althoughsome affidavit evidence has been provided in support, those are, however, not relevantto the current statement of claim.[60] Without commenting on the availability of those claims generally, sucharguments go beyond the scope of the pleading in the statement of claim. It records asingle cause of action under s 13(i) of the Fair Trading Act, based on a singlemisrepresentation made and relied upon:15. On about 23 August 2021 Lucky orally represented to Mr Tuhoro thatthe windscreen repair had to be carried out by Smith & Smith orNovus for State to cover the damage.16. It was reasonable for Mr Tuhoro to rely on the representation(s) inparagraph 15 above.[61] This is the sole alleged misrepresentation in the statement of claim, for whichCNR says they suffered a loss of $1,098.25. The only reference to any additionalmisrepresentations made is at para 21 where the statement of claims reads:The plaintiff estimates that it has lost a further $24,674 from other clientsthat were diverted by misrepresentation(s) by the defendant [62] That estimation is unsupported by any particulars and does not tie any specificmisrepresentations to the generalised loss estimate. While some affidavit evidence hasbeen provided in support of this more generalised claim, there has been no amendmentof the statement of claim despite ample time to do so prior to the hearing.[63] As noted in Westpac Banking Corp v M M Kembla New Zealand Ltd, adefendant will usually be granted summary judgment where they provide evidencewhich is a complete defence to the plaintiff's claim.11 IAG has provided the transcriptof the phone call containing the alleged misrepresentation. There is no suggestion that11 Westpac Banking Corp v M M Kembla New Zealand Ltd, above n 6.the call is not credible. The transcript confirmed that Lucky told Mr Tuhoro'srepresentative that he could use CNR:Komen what I can advise you is that they [Chip n Repair] can do but theyneed to send a quote to us first. So it may take more time for you to get arepair, than for me to send directly to Novus right now.[64] After Lucky explained that the advantage of Novus and Smith & Smith is thatthey work directly with IAG, with the result that the repair would be completed morequickly, Mr Tuhoro's representative Mr van Komen replied "that's nice" andapparently agreed to use Novus on that basis.[65] I consider that the misrepresentation alleged in the statement of claim was notmade. So, as limited to the present statement of claim, IAG has provided a completedefence to CNR's cause of action based on the claimed misrepresentation made to MrTuhoro on 23 August 2021. The merits are clear and the case is capable of summarydisposal.[66] For completeness, as Mr Friar clarified, CNR's concerns regarding issueestoppel are also misplaced. The summary judgment relates only to the allegedmisrepresentation made to Mr Tuhoro on 23 August 2021. In the event that othercustomers have been affected, as Mr Friar has stated, summary judgment in this casewill not prevent CNR from pursuing claims in relation to those matters.Decision[67] The defendant's application for summary judgment is granted.[68] Without having heard from counsel, my inclination is that costs should lie.However, if counsel take a different view, memoranda can be exchanged a month afterthe issue of this judgment.____________________________Harvey J