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Perriam v Wilkes

Perriam v Wilkes

Case [2014] NZHC 2192 10 September 2014

Jurisdiction

Causation

Res Judicata

Unconscionable Conduct

Fiduciary Duty

Civil Litigation & Procedure

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-425-000284 [2014] NZHC 2192

BETWEEN
WENDY JOY PERRIAM

Plaintiff

AND

LAWRENCE ERNEST WILKES First Defendant

STEPHEN JOHN BRADSHAW Second Defendant

ALEXANDER McLENNAN WILSON Third Defendant

LESLEY MARGARET INSTONE Fourth Defendant

JUDITH ELEANOR FLETT Fifth Defendant

AND

QBE INSURANCE (INTERNATIONAL) LIMITED

Third Party

Hearing: 15 and 16 July 2014

Appearances:

S J Callanan for Plaintiff
P B Churchman QC for Defendants
P J Shamy for Third Party

Judgment:

10 September 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 10 September 2014 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

WENDY JOY PERRIAM v LAWRENCE ERNEST WILKES [2014] NZHC 2192 [10 September 2014]

Introduction

[1] On 13 June 2012, Associate Judge D I Gendall struck out the fourth amended statement of claim in this proceeding on the basis that none of the pleaded causes of action were reasonably arguable.1 The plaintiff now seeks to review the Associate Judge’s decision.

Approach to review

[2] Section 26P(1) of the Judicature Act 1908 provides jurisdiction for the plaintiff’s application to review the decision. In accordance with s 26P(1)(a), the Court must review the decision in accordance with the High Court Rules.

[3] Rule 2.3(4) of the High Court Rules provides:

2.3 Review of decision

…

(4) If the order or decision being reviewed was made following a defended hearing and is supported by documented reasons,—

(a) the review proceeds as a rehearing; and

(b) the Judge may, if he or she thinks it is in the interests of justice, rehear the whole or part of the evidence or receive further evidence.

…

[4] As noted in McGechan on Procedure,2 the approach is essentially appellate. The starting point is the Associate Judge’s decision. The plaintiff has the burden of persuading the Court that the decision was wrong – that it rested on unsupportable findings of fact and/or applied wrong principles of law.3 The Court will apply the approach in Austin, Nichols & Co Inc v Stichting Lodestar,4 which involves the
Court making its own assessment as to whether the original decision is wrong.

1      Perriam v Wilkes [2012] NZHC 1250.
2      Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [HR2.3.02(1)].
3      Midland Metals Overseas Pte Ltd v Christchurch Press Company Ltd (2002) 16 PRNZ 107 at
[13].
4      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, (2007) 18 PRNZ 768.

[5] It is accepted that for the purposes of a strike-out application the pleaded facts, whether or not admitted, are assumed to be true. This does not however extend to pleaded allegations which are clearly speculative and without foundation.5
The Court is also entitled to consider evidence on a strike-out application if such evidence has been filed. In Attorney-General v McVeagh the Court of Appeal stated:6

The Court is entitled to receive affidavit evidence on a striking-out application, and will do so in a proper case.…

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 Perriam v Wilkes

Details

AGLC: Perriam v Wilkes [2014] NZHC 2192
Case: [2014] NZHC 2192
Decision Date: 10 September 2014

CaseChat Overview and Summary

The plaintiff, Wendy Joy Perriam, sought to review a decision by Associate Judge Gendall to strike out her fourth amended statement of claim against the defendants, a legal firm known as Macalisters. The plaintiff's statement of claim alleged that Macalisters, which had provided legal services to her and her ex-husband, had breached their fiduciary duty by establishing various trusts and companies and transferring assets into them without her knowledge or consent, thereby depriving her of her rightful share of relationship property. The primary legal issue was whether the plaintiff had established a reasonably arguable cause of action against the defendants. The court found that the plaintiff had failed to establish a causal link between the defendants' alleged breaches of fiduciary duty and the claimed losses. The court held that the loss of assets was due to the business failures of the Perron Group, not the actions of the defendants. Furthermore, the court found that the plaintiff's claims were speculative, unsubstantiated, and not supported by the law. The application for review was dismissed, and the defendants were awarded costs.

Orders