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EBS v CAS

EBS v CAS

Case [2014] NZHC 2929 24 November 2014

Civil Litigation & Procedure

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NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON- PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2595 [2014] NZHC 2929

IN THE MATTER OF
an appeal under s 72 of the District Courts

Act 1947

BETWEEN

EBS Appellant

AND

CAS Respondent

UNDER the Property (Relationships) Act 1976 and the Contractual Remedies Act 1979

BETWEEN EBS Plaintiff

ANDCAS Defendant

UNDER the Family Proceedings Act 1980 and the
Fair Trading Act 1986

BETWEEN EBS Applicant

AND CAS
First Respondent
MICAL SHANE JERVIS TREADWELL, JAMES PETER WOODS, CAS and EBS as trustees of the CA & EBS FAMILY TRUST
Second Respondents

EBS v CAS [2014] NZHC 2929 [24 November 2014]

BRYAN GEORGE POCOCK, TREADWELLS TRUSTEES NO 2
LIMITED and CAS as trustees of the CAS FAMILY TRUST
Third Respondents

MICAL SHANE JERVIS TREADWELL, BRYAN GEORGE POCOCK and CAS as trustees of the CAS COMMERCIAL TRUST
Fourth Respondents

POCOCK HUDSON LIMITED Fifth Respondent

CIV-2011-485-2559

UNDER the Trustee Act 1956 and the Declaratory
Judgments Act 1908

BETWEEN EBS Plaintiff

AND CAS
First Defendant
MICAL SHANE JERVIS TREADWELL Second Defendant
MICAL SHANE JERVIS TREADWELL, JAMES PETER WOODS, CAS and EBS as trustees of the CA & EBS FAMILY TRUST
Third Defendants
BRYAN GEORGE POCOCK, TREADWELLS TRUSTEES NO 2
LIMITED and CAS as trustees of the CAS FAMILY TRUST
Fourth Defendants
MICAL SHANE JERVIS TREADWELL, BRYAN GEORGE POCOCK and CAS as trustees of the CAS COMMERCIAL TRUST
Fifth Defendants

Hearing: 29 October 2014

Counsel:

H B Rennie QC and A R Davie for CAS I R Millard QC and J J Delany for EBS

Judgment:

24 November 2014

RESERVED JUDGMENT OF DOBSON J

Contents

This judgment .................................................................................................................................... [1] History of the proceedings ................................................................................................................ [3] The new causes of action................................................................................................................. [17] Res judicata ..................................................................................................................................... [25] The rule in Henderson v Henderson ............................................................................................... [54] No tenable cause of action .............................................................................................................. [64] Abuse of process .............................................................................................................................. [77] Standing back .................................................................................................................................. [83] Costs ................................................................................................................................................. [90]

This judgment

[1] This judgment arises in long-running proceedings involving relationship property and quasi relationship property claims by the applicant (EBS) pursued against her former husband (CAS). The remaining respondents, who took no part in the present hearing, are professional trustees of various trusts under the effective influence of CAS, and accounting advisers retained by him and those trusts.

[2] This judgment determines applications on behalf of CAS for defendant’s summary judgment in relation to two new causes of action pleaded on behalf of EBS in an amended statement of claim filed in June 2014, or alternatively for an order either striking out or staying those causes of action.

History of the proceedings

[3] EBS commenced a range of claims in 2009 and 2010 seeking maintenance and awards out of property over which she asserted claims. Claims were initially filed in the Family Court, but in November 2011 those proceedings were transferred

to the High Court. Companion…

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 EBS v CAS

Details

AGLC: EBS v CAS [2014] NZHC 2929
Case: [2014] NZHC 2929
Decision Date: 24 November 2014

CaseChat Overview and Summary

The High Court of New Zealand dismissed applications by CAS to strike out or stay two new causes of action pleaded by EBS in relation to alleged misrepresentations and non-disclosure in the context of a mediation that resulted in a Heads of Agreement (HoA). The Court also dismissed an application for summary judgment in relation to the new causes of action. The Court held that although CAS had made out the elements for issue estoppel and the rule in Henderson v Henderson, it was not in the overall justice of the situation to prevent EBS from pursuing her claims. The Court found that EBS's claims could not be dismissed as untenable and that the recent conduct of EBS's representative in attempting to pressure CAS into making further provision for her did not constitute an abuse of process. The Court reserved costs pending the substantive determination of the issues raised by the new causes of action.

Orders