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 PartyJudgment:
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.…
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