Crummer Trustees no. 83 Limited v Bank of New Zealand

[2015] NZHC 2165

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000571 [2015] NZHC 2165

BETWEEN

CRUMMER TRUSTEES NO.83

LIMITED Plaintiff

AND

BANK OF NEW ZEALAND First Defendant

AND

PARK ROAD CONSOLIDATED LIMITED

Second Defendant

AND

XFHNZ LIMITED Third Defendant

AND

CLASSIC BUILDERS GROUP LIMITED Fourth Defendant

AND

PETER DESMOND COONEY Fifth Defendant

AND

MERIDIAN TRUSTEE SERVICES LIMITED AND CLM TRUSTEES LIMITED

Sixth Defendants

Hearing:	25 August 2015
Appearances:	M C Black for Plaintiff SM Bisley and B J Maltby for First Defendant No appearances by or for Second to Sixth Defendants
Judgment:	8 September 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 8 September 2015 at 4pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:…………………………

CRUMMER TRUSTEES NO.83 LIMITED v BANK OF NEW ZEALAND & ORS [2015] NZHC 2165 [8

September 2015]

Introduction

[1]      The plaintiff, Crummer Trustees No.83 Limited (“Crummer Trustees”), has filed a claim against various defendants in relation to a joint venture in a residential development in Katikati.

[2]      Crummer Trustees is the corporate trustee of a trust known as the Winning Trust and the Winning Trust was one of the joint venturers.  The other joint venturer was another trust – the Nexus Trust. The settlors behind the two joint venture trusts:

(a)       settled a third trust, known as the Davric Trading Trust;

(b)      incorporated the second defendant, Park Road Consolidated Limited

(“Park Road”); and

(c)       appointed Park Road as the corporate trustee of the Davric Trading

Trust.

The joint venture was conducted through Park Road and the Davric Trading Trust. The first defendant, the Bank of New Zealand (“BNZ”) held and operated the bank accounts for the Davric Trading Trust.

[3]      The most recent amended statement of claim raises eight causes of action. The sixth to eight causes of action (inclusive) are against the BNZ.  They broadly allege:

(a)       breach by the BNZ of its banking mandate;

(b)      breach by the BNZ of fiduciary duties said to be owed to Crummer

Trustees; and

(c)       negligence by the BNZ.

[4]      BNZ  seeks  summary  judgment  on,  or  in  the  alternative,  to  strike  out,

Crummer Trustees’ claims  against  it.    The  application  is  opposed  by  Crummer

Trustees.  It in turn applies for particular discovery against BNZ, and this application is resisted by the BNZ.

[5]      Counsel were agreed that it is appropriate to deal first with BNZ’s application for summary judgment and/or strike out.   Unless that application succeeds, it will then  be  necessary  to  deal  with  Crummer  Trustee’s  application  for  particular discovery.

Background

(a)      The joint venture

[6]      In its amended statement of claim, Crummer Trustees alleges that it is a trustee company and that it is suing in its capacity as trustee of the Winning Trust.  It says that the Winning Trust has, and continues to have, a 50 per cent beneficial interest in a joint venture residential development at Katikati, and that Park Road was incorporated as the sole trustee and corporate vehicle through which to implement the joint venture.…