Rosenberg v AMP Services (NZ) Limited - [2020] NZHC 631

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000767

[2020] NZHC 631

BETWEEN
REBECCA ROSENBERG

Applicant

AND

AMP SERVICES (NZ) LIMITED

Respondent

On the Papers

Judgment:

24 March 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 24 March 2020 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Chapman Tripp, Wellington

Party:
R Rosenberg

ROSENBERG v AMP SERVICES (NZ) LIMITED [2020] NZHC 631 [24 March 2020]

Introduction

[1] On 31 July 2018, I dismissed Ms Rosenberg’s application for review of Associate Judge Osborne’s decision of 13 November 2017 striking out her claim.1 Ms Rosenberg now applies for leave to appeal to the Court of Appeal.

Background

[2] Ms Rosenberg claims that AMP Services (NZ) Ltd breached a contract of life insurance following the death of her father Allen Rosenberg on 18 April 2006 by not paying out in respect of that policy.2 Allen Rosenberg was the sole policy owner and beneficiary.3

[3] AMP’s substantive defence is that the policy ended before Allen Rosenberg died, because of non-payment. AMP has also pursued and obtained strike-out on the bases that Ms Rosenberg has no standing and secondly under the Limitation Act 1950.

[4] Ms Rosenberg’s position in respect of the limitations issue has changed twice, without formal repleading. I have previously noted that her “prosecution of this case is so exhaustive and scattered, that it unreasonably adds to the workload of the Court.”4 I (and other judges) have indulged a number of procedural irregularities because she is self-represented.

[5] Before the Associate Judge, Ms Rosenberg proceeded on the basis that Allen Rosenberg had died intestate, that she was a beneficiary on his intestacy, and that the life insurance proceeds formed part of his estate. The Judge held that claim to be infelicitously devised. The right to bring proceedings against a stranger to an estate vests in the administrator(s) or executor(s) of an estate, not a beneficiary.5 Ms Rosenberg therefore lacked standing.

1      Rosenberg v AMP Services (NZ) Ltd [2018] NZHC 1929, [2018] NZAR 1459.
2      The life insurance policy in question was in fact held with AXA’s New Zealand operation. In 2011, AMP took over AXA’s New Zealand operations. For convenience and clarity, I refer to the respondent as AMP throughout.
3      In her most recent submissions, Ms Rosenberg has claimed that her mother was also a policy owner. That submission is inconsistent with the express terms of the document, and I put it to one side.
4 Above n 1 at [26].
5      Rosenberg v AMP Services (NZ) Ltd [2017] NZHC 2232 at [32] and [34]. [37]-[38] and [41]-[42].

[6] Before me, Ms Rosenberg instead based her position regarding standing on a will, uncovered in February 2018, by which Allen Rosenberg had appointed Ms Rosenberg’s mother as executrix and devised to her mother his whole estate.6 Also, on 24 January 2017, so before the will was found, Ms Rosenberg’s…

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: [2020] NZHC 631
Decision Date: 24 March 2020

CaseChat Overview and Summary

Rebecca Rosenberg sought leave to appeal a decision by Hinton J dismissing her claim against AMP Services (NZ) Ltd. Rosenberg claimed AMP breached a life insurance contract by not paying out following the death of her father, Allen Rosenberg. AMP argued the policy ended before Allen's death due to non-payment, and Rosenberg had no standing to bring the claim. Rosenberg sought leave to appeal on multiple grounds, including that she had standing to bring the claim, the claim was not time-barred, and there were errors in the application of the Limitation Act 1950.

The court found Rosenberg's arguments lacked merit. The court held that Rosenberg had no standing to bring the claim as she was not the executor of her father's estate. The court also found that the claim was time-barred under s 4(1)(a) of the Limitation Act 1950. The court rejected Rosenberg's arguments relating to equitable fraud and reasonable discoverability, finding that the material facts of the claim were known to Rosenberg in 2006. The court also found that Rosenberg's other arguments revisited issues already determined.

In determining whether justice required allowing the appeal, the court considered the cost and inconvenience of a further appeal. The court found Rosenberg's conduct throughout the proceeding had been costly and inefficient. Rosenberg disobeyed directions to obtain legal representation and act in person. She filed voluminous and unfocused submissions. She also became querulous and blamed counsel for her deteriorating health. For these reasons, the court found that justice did not require allowing the appeal and dismissed Rosenberg's application for leave.

The court ordered Rosenberg to pay AMP's costs of the application on a 2B basis and disbursements. While lay litigants are usually afforded indulgence, Rosenberg's conduct had caused AMP even greater expense than usual, which required recognition.

Orders