Lorenzen v Cullen

[2012] NZHC 628

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-301 [2012] NZHC 628

BETWEEN  FRANCIS WALTER LORENZEN AND ALEXANDER HENRY LORENZEN Plaintiffs

ANDBRENDAN THOMAS PAUL CULLEN, THOMAS NATHANAEL GIBBONS, JULIE MARGEURITE HARDAKER, PHILLIP GEORGE HARRIS, JOHN GORDON NEVERMAN, GERARD JOHN RENNIE,

ANDDONALD MATTHEW SHIRLEY AND AIDAN HENRY CHARLES WARREN TRADING AS MCCAW LEWIS CHAPMAN

Defendants

(On the papers)

Counsel:         DM O'Neill for plaintiffs

MJ Allan for defendants

Judgment:      3 April 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to strike out]

This judgment was delivered by me on 3 April 2012 pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           John Webb, PO Box 132, Hamilton 3240

Kennedys, PO Box 3158, Auckland 1140

LORENZEN V CULLEN, HC HAM CIV-2011-419-301 [3 April 2012]

[1]      In  my  judgment  delivered  on  23 November  2011  I  considered  that  the plaintiffs’ amended statement of claim filed on 8 July 2011 which contained three causes of action were all barred by s 4 of the Limitation Act 1950.

[2]      I  recorded  a  late  submission  advanced  by  Mr O’Neill  on  behalf  of  the

plaintiffs. For completeness sake, [46] and [47] of my judgment are now set out.[1]

[1] Lorenzen v Cullen HC Hamilton CIV-2011-404-301 23 November 2011.

[46]     The conclusion that I have reached on the papers and the oral submissions is that the three causes of action, as currently pleaded, are  all  barred  by  s 4  of  the  Limitation Act  1950.    Mr O’Neill, however, raised a matter that is not referred to in the documents.  He advised that the defendants had continued to act for the plaintiffs throughout and, in fact, up to and including the time of the breach of the Lombard Finance and Investment Ltd mortgage.  He submitted that it might be possible to amend the statement of claim to allege breach of a contract of retainer.  I canvassed the possibility of a short adjournment being granted with a view to his providing me with the proposed amendment.   He indicated that he did not feel confident about completing this on the day of the hearing.

[47]     The possibility of a problem being cured by an amendment was referred to in Marshall Futures  Ltd (in liq) v Marshall.[2]      Some caution, however, is required.  If the amendment is, in effect, a new cause of action, care would have to be taken that it is not barred by a limitation defence and by the operation of  r 7.77(4) of the High Court Rules.  Particular care would need to be taken to ensure that the  new  pleading did  not involve  something essentially different from that which had been pleaded earlier.[3]

[2] Marshall Futures Ltd (in liq) v Marshall [1992] 1 NZLR 316.

[3] Chilcott v Goss [1995] 1 NZLR 263.

[3]      What followed was the filing of a second amended statement of claim on

8 December 2011.   The defendants responded with a memorandum on 23 January

2012.   On 20 February 2012 I issued a minute requiring the plaintiffs to file a memorandum in opposition to the plaintiffs’ memorandum by 5 March 2012.  The plaintiffs duly responded and filed a memorandum on 21 February 2012.

[4]      Unfortunately,  the  plaintiffs’ memorandum  of  21 February  2012  was  not referred to me for some time.  When I received it I issued a minute on 19 March

2012 in the following terms:

It is not clear to me from the amendment how it can be said that the breach of contract or, for that matter, the negligence occurred after 6 May 2004.  I invite  Mr O’Neill  to  respond  within  seven  days  by  memorandum.    If  I consider that there is an issue that needs addressing here I will allocate further hearing time.  At the moment that does not appear to me to be the position.

[5]      Mr O’Neill did in turn file a further memorandum which was received by the

court on 26 March 2012.

[6]      The  plaintiffs  do  not  currently  plead  any  contract  of  retainer  as  was contemplated as a possibility in my judgment of 23 November 2011.  I suspect, but cannot be sure of the position, that counsel formed the view that that might have involved a new cause of action which, itself, may have been barred by the operation of r 7.77(4) of the High Court Rules.   I do not need to determine that issue any further because it is not pleaded.

[7]      The new pleadings do not remove the allegation that, in the case of the breach of contract cause of action, the breach occurred on the registration of the transfer to Mr and Mrs Mayall and the registration of a mortgage granted by them to the BNZ on the same day.  Likewise, with the negligence cause of action the damage occurs with the registration of that transfer and the registration of the mortgage.

[8]      The fact that some subsequent matters could have been attended to plainly does not remove the fact the cause of action pleaded in contract and tort were barred by the time of the filing of this proceeding.   I note that, in the second amended statement of claim, the third cause of action has not been repeated.

[9]      Accordingly, nothing new has been presented to me that causes me to alter the conclusion I reached in my judgment of 23 November 2011.   The causes of action currently pleaded by the plaintiffs are all barred by s 4 of the Limitation Act

1950.  In the circumstances, the proceeding must be struck out. [10]  I order accordingly.

Costs

[11]     This judgment effectively concludes the proceeding.  The defendant has been successful  and is  entitled to  costs.   Counsel may well be able to  agree on  the appropriate order.   In case counsel are unable to agree, memoranda in  support, opposition and reply on the question of costs shall be filed and served at seven-day intervals.  The Registrar shall then refer the file to me to consider the position on

costs.

JA Faire

Associate Judge