Miah v AMP Life Ltd - [2018] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-2864

[2018] NZHC 1634

BETWEEN
ABDUR RAHIM MIAH

Plaintiff

AND

AMP LIFE LIMITED

Defendant

Hearing: 2 July 2018

Appearances:

R J Hooker for the Plaintiff

J Knight and S Kettani for the Defendant

Judgment:

4 July 2018

Reissued:

20 July 2018 at noon

JUDGMENT (1) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 4 July 2018 at 3:00pm
(pursuant to Rule 11.5 of the High Court Rules.) and re-issued on 20 July 2018 at noon
to include the citation at paragraph [11]

…………………………………
Deputy Registrar

Solicitors:
Vallant Hooker & Partners, Ponsonby, Auckland, for the Plaintiff Chapman Tripp, Wellington, for the Defendant

ABDUR RAHIM MIAH v AMP LIFE LIMITED [2018] NZHC 1634 [4 July 2018]

[1] This decision is on one of the applications set down for hearing on 2 July 2018: the defendant’s application under r 9.34 of the High Court Rules 2016 that the plaintiff provide original wills of Afrouza Miah dated 5 May 2007 and 11 May 2007 to be examined by a Police document examiner. As to the other applications, the parties cross-applied for further discovery under r 8.19. Discussion between counsel resulted in an agreed approach. I am not required to give rulings on further discovery. The plaintiff applied under r 8.25 to set aside the defendant’s claims for privilege regarding some of the documents. I heard argument and will give my decision after the defendant has provided me with copies of the documents to inspect.

[2] Under r 9.34 of the High Court Rules the court may make a range of orders for inspecting property, taking samples, observing property, making measurements, weighing, photographing, making experiments and observing processes. It is a useful provision for obtaining evidence. The power can be used to authorise documents to be examined for their authenticity, as when, say, forgery is alleged. I do not, however, order it in this case because it is not required to enable the proper determination of a matter in issue in this proceeding.

[3] In the substantive proceeding, Mr Miah sues on a life insurance policy over the life of his wife, Afrouza Miah. His case is that in 2006 they jointly took out an “AXA Risk Protection Plan” with the National Mutual Life Association of Australasia Ltd with cover of $2,000,000. Mr Miah was adjudicated bankrupt on 4 April 2007. That severed the joint tenancy. His interest vested in the Official Assignee. His wife owned a half share in the policy as a tenant in common with the Official Assignee. Mrs Miah made two wills in Bangladesh on 5 and 11 May 2007. She died in Bangladesh on 22 May 2007. The Bangladesh death certificate gives her cause of death as “asphyxia resulting from strangulation which was ante mortem and homicidal in nature”. I was advised that there had been a prosecution for her murder.

[4] In July 2007, Mr Miah…

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 Miah v AMP Life Ltd

Details

AGLC: Miah v AMP Life Ltd [2018] NZHC 1634
Case: [2018] NZHC 1634
Decision Date: 4 July 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Miah v AMP Life Ltd was heard. The plaintiff, Abdur Rahim Miah, sued AMP Life Ltd on a life insurance policy over the life of his wife, Afrouza Miah. The dispute arose as Miah claimed his wife's half share of the insurance policy as executor under her will dated 11 May 2007, which AMP Life Ltd questioned, alleging the signature on the will was not authentic. The court had to decide whether it should order the wills to be examined by a police document examiner as AMP Life Ltd requested under rule 9.34 of the High Court Rules.

The court considered the nature of the application under rule 9.34 and the circumstances of this case. Rule 9.34 allows the court to make orders for inspecting property and documents to obtain evidence. However, the court ruled that such an order was not required in this case, as the issues of probate and the authenticity of the will would be determined in a separate proceeding under the Administration Act. The court reasoned that the determination of the plaintiff's standing would be addressed in that separate proceeding and, therefore, the examination of the wills was not necessary for the proper determination of the matter in this proceeding.

Consequently, the court dismissed the defendant's application under rule 9.34 to have the wills examined by a police document examiner. The court noted that while the plaintiff was entitled to costs, they would be resolved in connection with the costs on the privilege application under rule 8.25, and the court reserved costs pending its decision on that application.

Orders