Marhsall v Bourneville - [2014] NZHC 2334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3646 [2014] NZHC 2334

UNDER
the Judicature Amendment Act 1908, the

Trustees Act 1956, the Family Proceedings
Act 1980

IN THE MATTER

of claims in equity for resulting trust and constructive trust; a claim in tort for knowing assistance/knowing receipt; claim for breach of trust; breach of fiduciary

duty; an application for orders direction trustees to transfer property to plaintiff

BETWEEN

CHRISTINE JILL MARHSALL Plaintiff

AND

MICHAEL VICTOR BOURNEVILLE and MARK GRAHAM BLEWDON as trustees of the Victor Frenchie Trust First Defendants

MICHAEL VICTOR BOURNEVILLE and MARK GRAHAM BLEWDON as trustees of the Victor Frenchie Trust

19/10/99 - 22/11/01
Second Defendants

MICHAEL VICTOR BOURNEVILLE and MARK GRAHAM BLEWDON and MARK BOURNEVILLE

Third Defendants

Hearing: 1 September 2014

Appearances:

A Hart for Plaintiff
B P Carter for Defendant

Judgment:

24 September 2014

JUDGMENT OF PETERS J

MARHSALL v BOURNEVILLE [2014] NZHC 2334 [24 September 2014]

This judgment was delivered by Justice Peters on 24 September 2014 at 4.15 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Parnell Law, Auckland
Morgan Coakle, Auckland

Counsel: B P Carter, Auckland

[1] This judgment determines:

(a) the Defendants’ application dated 30 June 2014 for an order that the

Plaintiff file and serve a more explicit statement of claim;1 and

(b)the Plaintiff’s application dated 4 June 2014 to set aside the Defendants’ appearance and objection to jurisdiction2 in respect of the Plaintiff’s sixth cause of action, concerning s 182 Family Proceedings Act 1980 (“Act”).3

Pleading

[2] The Defendants seek a more explicit statement of claim on the ground that [19], [39], [69], [86](a), [86](b), [86](a)-(j), [89]-[97] inclusive, [94], [96] and the fifth cause of action in the statement of claim (alleging breach of trust) are insufficiently particularised to give fair notice of the claim being made.

[3] The Plaintiff does not object in principle to providing the greater particularity sought but advises that she has not done so to date, so as to minimise costs.

[4] Having heard counsel, I am satisfied that the particulars sought are necessary to give fair notice of the claim being made against the Defendants. The Plaintiff is to file and serve an amended statement of claim which provides the degree of particularity required of the paragraphs/cause of action referred to above. The amended pleading is to be filed and served no later than 4 pm, 13 October 2014. For the reasons which follow, the Plaintiff should not include the sixth cause of action
(as to s 182 of the Act) in her amended pleading.

1      High Court Rules, r 5.21.
2      Rule 5.49(5).
3      The statement of claim includes two fifth causes of action. I refer to the one concerning s 182 as the sixth cause of action.

Protest to jurisdiction

[5] The Defendants have filed an appearance under protest to the jurisdiction of the High Court to hear and determine the Plaintiff’s sixth cause of action.4 The Plaintiff has applied to have the…

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 Marhsall v Bourneville

Details

AGLC: Marhsall v Bourneville [2014] NZHC 2334
Case: [2014] NZHC 2334
Decision Date: 24 September 2014

CaseChat Overview and Summary

Christine Jill Marhsall sought to enforce various claims against Michael Victor Bourneville and others, as trustees of the Victor Frenchie Trust, in the High Court of New Zealand. The claims included an application for resulting and constructive trust, a tortious claim for knowing assistance/receipt, a claim for breach of trust, and a claim for breach of fiduciary duty. Additionally, there was an application for orders directing the trustees to transfer property to the plaintiff. The defendants filed an application for an order that the plaintiff file and serve a more explicit statement of claim, arguing that several paragraphs and the fifth cause of action were insufficiently particularised. The plaintiff did not object in principle to providing more explicit particulars but had not done so to date to minimise costs. The court ordered the plaintiff to file and serve an amended statement of claim within the specified timeframe, detailing the necessary particulars to give fair notice of the claim.

The court also considered the defendants' protest to jurisdiction regarding the plaintiff's sixth cause of action under section 182 of the Family Proceedings Act 1980. The defendants argued that only the Family Court had originating jurisdiction to make orders under this section. The plaintiff contended that the High Court also had jurisdiction to make such orders or that it had inherent jurisdiction to do so. The court held that the defendants' submissions were correct and that, in the absence of a transfer from the Family Court, the High Court did not have jurisdiction to make the orders sought under section 182. The court found that the statutory provisions explicitly referred to the Family Court and did not mention the High Court, and that the jurisdiction conferred by section 182 was ancillary to jurisdiction under the Act and other related acts. The court also noted that the Act envisaged that the High Court's jurisdiction would be appellate, hearing appeals against orders made by a District or Family Court. The court declined the plaintiff's application to set aside the protest to jurisdiction and reserved leave to apply on this point if necessary. The court declined to make any order for costs as the plaintiff was in receipt of legal aid.

Orders