Murren v Schaeffer - [2017] NZHC 163

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2015-442-000028 [2017] NZHC 163

BETWEEN
JAMES JOSEPH MURREN AS

TRUSTEE OF THE JAMES J MURREN SPENDTHRIFT TRUST

First Plaintiff

DANIEL LEE Second Plaintiff

AND

GLENN SCHAEFFER Defendant

Hearing: 5 December 2016 and 31 January 2017 (in writing)

Appearances:

A J Horne and J J K Spring for Plaintiffs
B N Nathan for Defendant

Judgment:

15 February 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Introduction

[1] Mr Murren, as trustee of the James J Murren Spendthrift Trust, and Mr Lee sue Mr Schaeffer in respect of contributions they made to an intended investment in a vineyard and winery at Upper Moutere, Nelson. More detailed facts and a summary of the causes of action are set out in a judgment of the Court dated 6
November 2015.1

[2] As noted in that judgment there are five causes of action, the first under the Fair Trading Act 1986, the second for alleged negligent misstatement, the third for intentional misrepresentation, the fourth for fraudulent misrepresentation, and the
fifth for breach of the Nevada Deceptive Trade Practices Act.2 Apart from denials of

1 Murren v Schaeffer [2015] NZHC 2759.
2 Nevada Deceptive Trade Practices Act Nev Rev Stat § 41.600.

MURREN v SCHAEFFER [2017] NZHC 163 [15 February 2017]

various facts relied on by Mr Murren and Mr Lee, Mr Schaeffer pleads four affirmative defences. Two are at issue on the applications presently before the Court. First, in relation to each cause of action, Mr Schaeffer pleads abuse of process, alleging that the proceeding has been brought for an ulterior and collateral purpose, is improper and is an abuse of the Court’s process. Secondly, Mr Schaeffer says that this is a malicious prosecution.

[3] As well, Mr Schaeffer counterclaims against Mr Murren and Mr Lee seeking damages for abuse of process and, as a second cause of action, damages for malicious prosecution.

[4] Mr Murren and Mr Lee apply to strike out these two affirmative defences and the two counterclaims. Mr Schaeffer opposes these applications.

[5] Mr Schaeffer also applies for an order under r 8.21 of the High Court Rules directing that Mr Murren’s wife Heather Murren, who lives in Las Vegas, Nevada, give discovery of certain classes of documents.

Background to the allegations of abuse of process and malicious prosecution

[6] In an affidavit sworn on 12 July 2016 in support of an application for security for costs, Mr Schaeffer discloses the basis on which he says his relationship with Mr and Mrs Murren, and with Mr Lee, broke down. In July 2007 Mr and Mrs Murren are said to have introduced him to a woman named Sally Hopper. Mr Schaeffer and Ms Hopper became romantically involved. They broke up in March 2011. Disputes broke out between them in relation to property matters, with Ms Hopper filing proceedings against Mr Schaeffer shortly afterwards. At that point, Mr Schaeffer and Mr and Mrs Murren shared business interests in the vineyard and winery in New Zealand,…

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 Murren v Schaeffer

Details

AGLC: Murren v Schaeffer [2017] NZHC 163
Case: [2017] NZHC 163
Decision Date: 15 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, James Joseph Murren as trustee of the James J Murren Spendthrift Trust and Daniel Lee, sued Glenn Schaeffer over contributions they made to an intended investment in a vineyard and winery at Upper Moutere, Nelson. Schaeffer denied various facts relied on by the plaintiffs and pleaded four affirmative defences. Two of these defences, abuse of process and malicious prosecution, are at issue on the applications currently before the court. The plaintiffs apply to strike out these two defences and the two counterclaims Schaeffer has raised against them. Schaeffer opposes these applications. Schaeffer also applies for an order directing Heather Murren, wife of the first plaintiff, to give discovery of certain classes of documents. The court has decided that the allegations of abuse of process and malicious prosecution should be struck out. It also found that the application for non-party discovery should be dismissed.

Orders