Perriam v Wilkes - [2012] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-425-284 [2012] NZHC 1250

BETWEEN WENDY JOY PERRIAM Plaintiff

ANDLAWRENCE ERNEST WILKES First Defendant

ANDSTEPHEN JOHN BRADSHAW Second Defendant

ANDALEXANDER MCLENNAN WILSON Third Defendant

ANDLESLEY MARGARET INSTONE Fourth Defendant

ANDJUDITH ELEANOR FLETT Fifth Defendant

ANDQBE INSURANCE (INTERNATIONAL) LIMITED
Third Party

Hearing: 9 May 2012
(Heard at Auckland)

Counsel: S.J. Callanan - Counsel for Plaintiff
P. Churchman - Counsel for Defendants

Judgment: 13 June 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered by the Registrar on 13 June
2012 at 4.00 pm under r 11.5 of the High Court Rules.

Solicitors: Lewis Callanan, Solicitors, PO Box 35361, Browns Bay, Auckland
Burrowes & Co, Solicitors, PO Box 24515, Manners Street, Wellington

WJ PERRIAM V LE WILKES HC AK CIV-2009-425-284 [13 June 2012]

Introduction

[1] This action has sprung out of what was a protracted relationship property dispute between the plaintiff Wendy Joy Perriam (Mrs Perriam) and her former husband Mark Francis Perriam (Mr Perriam), who is now bankrupt. In the present proceeding, the plaintiff Mrs Perriam brings a claim (essentially alleging breaches of fiduciary duty, equitable fraud and knowing receipt) against the defendant solicitors who were instructed by her husband Mr Perriam to set up a number of trusts and companies to hold a range of business assets. In essence, Mrs Perriam alleges that the defendants were involved in creating these structures and completing a range of transactions affecting them to knowingly defeat her interests in relationship property as between herself and Mr Perriam.

[2] In the present application before me, the defendants apply to strike out the plaintiff’s latest amended statement of claim on the basis that none of the pleaded causes of action are reasonably arguable and have any prospects of success. This strike out application relates to Mrs Perriam’s fourth amended statement of claim, which was filed on 16 March 2012. This followed four earlier pleadings which were an initial statement of claim filed in this proceeding on 9 June 2009, a first amended statement of claim filed on 18 November 2009, a second amended statement of claim filed on 17 May 2010 and a third amended statement of claim filed on 5 July
2011.

[3] There has been an earlier strike out decision in this proceeding. In a decision given on 6 October 2010 on that application, which was one by the defendants to strike out the plaintiff Mrs Perriam’s second amended statement of claim, His Honour Associate Judge Faire found that although that statement of claim was entirely unsatisfactory, nevertheless he would adjourn the strike out application and gave the plaintiff an opportunity to re-plead following further discovery.

[4] That did occur and obviously it lead to the filing of Mrs Perriam’s third and then her fourth amended statements of claim, the latter of which is the subject of the present strike out application. This application is opposed by the plaintiff, Mrs Perriam.

Background

[5] The plaintiff, Mrs Perriam, was married…

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: [2012] NZHC 1250
Decision Date: 13 June 2012

CaseChat Overview and Summary

In Perriam v Wilkes, the plaintiff Mrs Perriam brought claims against the defendant solicitors who were instructed by her former husband Mr Perriam to set up trusts and companies to hold business assets. Mrs Perriam alleged that the defendants breached fiduciary duties, committed equitable fraud and were knowing recipients of property by establishing these structures to defeat her interests in relationship property. The defendants applied to strike out Mrs Perriam's fourth amended statement of claim on the basis that none of the pleaded causes of action were reasonably arguable and had no prospects of success. The court found that the fourth amended statement of claim still suffered from serious deficiencies and failed to properly particularise the claims and losses, establish a causal link between the defendants' alleged breach and the losses said to be incurred. The court concluded that the pleadings were not capable of effective repair and ordered that the causes of action in the fourth amended statement of claim be struck out. The defendants were awarded costs on a category 2B basis.

Orders