Kerridge v Kerridge - [2009] NZCA 14

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND
CA498/2007
CA738/2008
[2009] NZCA 14
BETWEENROLAND MICHAEL KERRIDGE

Appellant

ANDKAREN PHYLLIS KERRIDGE

First Respondent
ANDCLIVE ROBERT CARTER AND KEITH DAVID HERBERT AS TRUSTEES OF THE ROLAND KERRIDGE TRUST

Second Respondent
ANDBROOKFIELDS

Third Respondent

Hearing:26 January 2009

Court:O'Regan, Robertson and Arnold JJ
Counsel:A E Hinton QC and D J G Cox for Appellant

K G Davenport for First Respondent

Judgment:16 February 2009
Reasons:18 February 2009

JUDGMENT OF THE COURT

A THE APPEAL IS DISMISSED.
BThe first respondent’s claims (other than those which were struck out in the High Court) may be tried in the High Court.
CThe appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Table of Contents

Para No

INTRODUCTION  [1]
BACKGROUND  [5]
THE PLEADINGS  [16]
THE HIGH COURT PROCEEDINGS  [28]
         ASSOCIATE JUDGE DOOGUE’S JUDGMENT  [29]
         HEATH J’S REVIEW  [33]
ISSUES ON APPEAL  [37]
         THE SCOPE OF S 4 OF THE PRA  [39]
         SECTION 51 OF THE ACT  [54]
         SECTION 28(A) OF THE LIMITATION ACT 1950  [60]
RESULT  [66]
Introduction
[1]       This is an appeal from a decision of Heath J (Kerridge v Kerridge HC AK CIV 2006-404-1393 31 October 2008 – leave to appeal having been granted by the Judge on that day) dismissing an application to review part of a judgment delivered by Associate Judge Doogue declining to strike out all causes of action against the appellant (Kerridge v Kerridge [2008] NZFLR 30).
[2]       Mr Kerridge filed an appeal against the decision of the Associate Judge refusing to strike out all claims against him or, in the alternative, to grant him summary judgment. While there is a right of appeal to this Court against the decision of an Associate Judge on a summary judgment application, there is no such right in respect of an Associate Judge’s decision on a strike-out application. In the latter case, a review must be sought in the High Court: see s 26P of the Judicature Act 1908 and Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA). When this matter came before this Court in October 2008, there was no jurisdiction to hear a material part of the appeal. The matter was returned to the High Court, where Heath J reviewed the Associate Judge’s decision on the strike-out application. The present appeal encompasses both the appeal against Heath J’s review decision and the appeal against the Associate Judge’s refusal to grant summary judgment.
[3]       The current legislative framework, which creates a dichotomy in respect of appeals from decisions of Associates Judges, demands amendment to harmonise the appellate path.
[4]       The principal issue now is whether Associate Judge Doogue and Heath J were correct to conclude that s 4 of the Property (Relationships) Act 1975 (“PRA”) does not preclude the first respondent from maintaining these proceedings in the High Court.
Background

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 Kerridge v Kerridge

Details

AGLC: Kerridge v Kerridge [2009] NZCA 14
Case: [2009] NZCA 14
Decision Date: 16 February 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal brought by Roland Michael Kerridge against the decision of Heath J to dismiss his application to review part of a judgment by Associate Judge Doogue. Associate Judge Doogue had declined to strike out all causes of action against Roland Kerridge. The primary issue for the Court of Appeal was whether Associate Judge Doogue and Heath J were correct in concluding that section 4 of the Property (Relationships) Act 1975 does not preclude the first respondent from maintaining these proceedings in the High Court. The Court found that section 4 of the PRA does not operate as a bar to all the proceedings in the High Court and that Mrs Kerridge is entitled to proceed with it in a limited way. The Court upheld the High Court decisions in relation to section 28(a) of the Limitation Act, and agreed that Mrs Kerridge's claim is restricted to the claim in deceit by virtue of an arguable extension of the six-year limitation period under section 28(a) of the Limitation Act. The appeal was dismissed, and Roland Kerridge was ordered to pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.

Orders