Miah v AMP Life Limited - [2019] NZHC 750

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-2864

[2019] NZHC 750

BETWEEN
ABDUR RAHIM MIAH

Plaintiff

AND

AMP LIFE LIMITED

Defendant

Hearing: 8 April 2019

Appearances:

R J Hooker for the Plaintiff

B Scott and S Kettani for the Defendant

Judgment:

8 April 2019

ORAL JUDGMENT (No.3) OF ASSOCIATE JUDGE R M BELL

[Security for costs]

MIAH v AMP LIFE LIMITED [2019] NZHC 750 [8 April 2019]

[1] The defendant, AMP Life Ltd, applies for security for costs. It proposes that the plaintiff, Mr Miah, should provide security of $34,000.00 and that the proceeding be stayed until that sum has been paid. It says that security should be a payment of money into court, to be held in court to await the outcome of the proceeding. It says that there is reason to believe that Mr Miah will be unable to pay its costs if he is unsuccessful in this proceeding.

[2] Mr Miah is suing AMP Life Ltd as the successor of the National Mutual Life Association of Australasia Ltd. For convenience, I will refer to the defendant as “AMP Life Ltd” even though National Mutual was the insurer at relevant times. It insured the life of Mr Miah’s wife, Afrouza Akter Miah, under a policy taken out in 2006. Mr and Mrs Miah were the owners of the policy. Her life was insured for $2,000,000.

[3] Mr Miah was adjudicated bankrupt on 4 April 2007. At that time, Mrs Miah was in Bangladesh. While Mr and Mrs Miah were New Zealand residents and New Zealand citizens, they originally came from Bangladesh. Mrs Miah died in Bangladesh on 22 May 2007. She is said to have been murdered. Mr Miah’s brother was prosecuted and found guilty of her murder. A Bangladeshi death certificate in evidence says that she died from asphyxiation. Mr Miah was discharged from his bankruptcy in August 2011. In March 2012, AMP Life Ltd formally declined the claim on the grounds of material non-disclosure and mis-statement. Mr Miah began this proceeding in May 2013.

[4] The most recent statement of claim has two causes of action. In the first, Mr Miah says that he and his wife owned the policy jointly, but the joint tenancy was severed on his adjudication in bankruptcy. While his half share vested in the Official Assignee, his wife continued to own her half share. He claims to be the executor of her estate and sues for half of the amount payable under the policy - $1,000,000 plus interest.

[5] In the second cause of action, he pleads that the policy was personal to himself, his interest in the policy did not pass to the Official Assignee on bankruptcy, and on his discharge he remained free to enforce his own rights under the policy. In that cause of action, he claims $2,000,000 payable under the policy. For reasons that I shall

explain later, I will disregard the second cause of action…

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.

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Details

Case: [2019] NZHC 750
Decision Date: 8 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Miah v AMP Life Limited, CIV-2013-404-2864 [2019] NZHC 750 was heard on 8 April 2019. The plaintiff, Abdur Rahim Miah, sought damages from the defendant, AMP Life Limited, as the successor to National Mutual Life Association of Australasia Ltd, following the denial of a life insurance claim on the death of his wife, Afrouza Akter Miah. The primary legal issues were whether Mr Miah had the right to sue, and whether there was material non-disclosure and mis-statement in the insurance application process.

The court first addressed the issue of whether Mr Miah had the right to sue. The Court of Appeal had previously ruled that one of Mr Miah's causes of action was arguable, primarily concerning the severance of a jointly-owned policy upon bankruptcy. However, the court noted that Mr Miah had not yet obtained a grant of administration for his wife's estate, and the proceedings to determine title to sue were likely to be protracted. The defendant contested Mr Miah's eligibility to be the administrator of his wife's estate, claiming he was unfit due to his alleged reliance on forged documents.

Next, the court considered the defences of material non-disclosure and mis-statement by the defendant, AMP Life Limited. The defendant argued that the Miahs provided inaccurate information about their financial position when applying for the insurance policy. Mr Miah denied responsibility for the information in question, asserting that he and his wife did not sign the relevant document. The court acknowledged that while there appeared to be some strength in the defendant's position, there was also room for contest on the merits of these defences.

After reviewing the merits of the case and the financial circumstances of the plaintiff, the court found that AMP Life Limited had met the threshold for a security for costs application under r 5.45(1) of the High Court Rules. The court was concerned about Mr Miah's ability to pay costs due to his past bankruptcy, limited assets, and potential difficulty in enforcing a costs order against him. The court ordered security for costs in the amount of $34,000, to be paid prospectively from the close of pleadings through to trial. The court also ordered a stay of execution of the costs orders in favour of Mr Miah, as well as a stay of enforcement of the orders for costs in other decisions. Finally, the court held that AMP Life Limited would be liable for costs on the security for costs application.

Orders