Brenssell v Brenssell - [2013] NZHC 2280

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2011-425-000602 [2013] NZHC 2280

BETWEEN
STANLEY EDLIN BRENSSELL

First Plaintiff

ROGER STANLEY BRENSSELL
Second Plaintiff

WENDY ALICE MILLER
Third Plaintiff

AND

CHRISTOPHER WARRACK BRENSSELL

First Defendant

CLIFFORD BARRY BRENSSELL
Second Defendant

AARON JAMES BRENSSELL
Third Defendant

SHAWN NATHAN BRENSSELL
Fourth Defendant

Hearing:

27 August 2013

Appearances:

E Orlov and G Stewart for Plaintiffs

J C D Guest and Ms Gardiner for Defendants

Judgment:

3 September 2013

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] On 31 July 2012 the Court issued a judgment by which two causes of action and a number of paragraphs in the statement of claim were struck out.

[2] In February 2013 the plaintiffs filed an amended statement of claim with the above-named second, third and fourth defendants added. On 8 March the defendants applied to strike out parts of that document. On 20 March the plaintiffs filed another

S E BRENSSELL v C W BRENSSELL [2013] NZHC 2280 [3 September 2013]

amended statement of claim, and on 13 August they filed yet another statement of claim. Thus there have been four pleadings in all. As they are not described by number, I will refer to them by the month of filing. The August pleading followed the filing and service of Mr Guest’s submissions in support of his application to strike out, with the result that parts of those submissions were no longer required. It is common ground that the application to strike out needs to be decided to the extent that it continues to apply to the August statement of claim.

[3] In the judgment issued on 31 July 2012 I summarised the facts ([26] to [50]) and it is not necessary to do so again. No further evidence has been filed in support of the application now before the Court.

[4] Mr Guest relies on r 15.1 of the High Court Rules:

15.1 Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)This rule does not affect the court's inherent jurisdiction.

[5] He emphasises that he does not seek to strike out the whole statement of claim but only portions of it. I will deal with these in turn.

A – paragraphs 13(c) and 13(f)

[6] These paragraphs are in the “Background” section of the statement of claim. In paragraph…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brenssell v Brenssell

Details

AGLC: Brenssell v Brenssell [2013] NZHC 2280
Case: [2013] NZHC 2280
Decision Date: 3 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Brenssell v Brenssell involved multiple plaintiffs seeking relief against several defendants regarding a trust and the sale of farm property. The plaintiffs, including Stanley Edlin Brenssell, Roger Stanley Brenssell, and Wendy Alice Miller, sought rectification of a trust deed and claimed breaches of fiduciary duties by the defendants, Christopher Warrack Brenssell, Clifford Barry Brenssell, Aaron James Brenssell, and Shawn Nathan Brenssell. The defendants applied to strike out certain parts of the plaintiffs' amended statements of claim, arguing they were either legally incorrect, caused unnecessary prejudice, or failed to adequately particularise the breaches of duty.

The court had to decide whether certain pleadings in the statements of claim were legally sufficient or if they should be struck out under the High Court Rules. The plaintiffs argued they were entitled to set out their intentions and the defendants' breaches of duty, while the defendants contended that some pleadings were misconceived and others lacked the necessary detail. The court found that some pleadings, particularly those concerning the sale of the farm and the term "fettered" in relation to the trust's discretion, should be struck out as they were either legally incorrect or insufficiently particularised. The court allowed the plaintiffs leave to re-plead these issues correctly, provided they did so within a specified timeframe.

In conclusion, the court dismissed the application to strike out certain paragraphs but allowed it for others, granting leave to re-plead. The plaintiffs were ordered to file a further amended statement of claim within 20 working days. The court emphasised the importance of proper pleading and warned the plaintiffs about the consequences of continued inadequate pleading. The defendants were awarded costs on a 2B basis, with disbursements fixed by the Registrar. The case was transferred to the Registry in Dunedin by consent.

Orders