Rosenberg v AMP Services (NZ) Limited - [2018] NZHC 1929

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000767

[2018] NZHC 1929

BETWEEN
REBECCA ROSENBERG

Plaintiff/Applicant

AND

AMP SERVICES (NZ) LIMITED

Defendant/Respondent

Hearing: 22 June 2018

Appearances:

No appearance by or for the Plaintiff/Applicant

J A Knight and S Kettani for the Defendant/Respondent

Judgment:

31 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 31 July 2018 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Chapman Tripp, Wellington

Party:
R Rosenberg

REBECCA ROSENBERG v AMP SERVICES (NZ) LIMITED [2018] NZHC 1929 [31 July 2018]

[1] This is an application to review a decision by Associate Judge Osborne on 13 November 2017, to strike out a claim filed by Ms Rosenberg against AMP on 15 April 2016.1 The key issues relate to whether Ms Rosenberg has standing and whether a limitation period applies.

Background

[2] The essence of Ms Rosenberg’s claim before the Associate Judge was that AMP wrongly failed to pay a $105,000 life insurance benefit following the death of her father, Allen Rosenberg, on 18 April 2006. The life insurance policy at issue is an AXA Risk Protection Plan – Life Insurance Component (the policy) which was owned by Mr Rosenberg. He was the life insured.

[3] The argument before Associate Judge Osborne proceeded on the basis that Mr Rosenberg had not left a will, and Ms Rosenberg would be a beneficiary on an intestacy.

[4] AMP’s substantive defence to the claim is that the policy ended before Mr Rosenberg’s death, as a result of non-payment.

[5] But putting that to one side, AMP applied to strike out on the grounds that, first, Ms Rosenberg did not have standing to bring the proceeding, and second, her claim was time-barred. To elaborate, AMP submitted:

(a)Ms Rosenberg did not have standing because she was not a party to or beneficiary of the policy, nor was she an executor or administrator of the estate of Mr Rosenberg (who was the owner and beneficiary of the policy); and/or

(b)The claim was time-barred by s 4(1)(a) of the Limitation Act 1950. The alleged cause of action, being a claim in contract under Mr Rosenberg’s life insurance policy, accrued when Mr Rosenberg died on or around

1 Rosenberg v AMP Services (NZ) Limited [2017] NZHC 2232.

18 April 2006 (nearly 10 years before this proceeding was filed on 15 April 2016), meaning the proceeding was time-barred by May 2012.

[6] Associate Judge Osborne excused Ms Rosenberg’s appearance at the hearing before him, but she filed extensive written submissions, including after the hearing was completed.

[7] By judgment dated 13 November 2017, Associate Judge Osborne struck out the plaintiff’s proceeding on the ground that Ms Rosenberg did not have standing to bring it. As a result, he considered it was unnecessary to determine whether the claim was also time-barred, although he said it appeared likely that it was.

[8]On 10 December 2017, Ms…

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: [2018] NZHC 1929
Decision Date: 31 July 2018

CaseChat Overview and Summary

Rosenberg v AMP Services (NZ) Limited [2018] NZHC 1929 is an application for review of a decision by Associate Judge Osborne to strike out a claim filed by Ms Rosenberg against AMP Services (NZ) Limited. The substantive issues before the Court were whether Ms Rosenberg had standing to bring the claim, and whether the claim was time-barred. The Court found that Ms Rosenberg had no standing to bring the claim as she was not a party to or beneficiary of the policy, nor was she an executor or administrator of the estate of Mr Rosenberg. The Court further found that the claim was time-barred by s 4(1)(a) of the Limitation Act 1950 as the alleged cause of action accrued when Mr Rosenberg died on 18 April 2006, which was nearly 10 years before the proceeding was filed on 15 April 2016. The Court declined AMP Services (NZ) Limited’s application to strike out the review application on the grounds of Ms Rosenberg’s non-appearance and directed that the review hearing proceed on the basis of written submissions from Ms Rosenberg. The Court concluded that the review application was dismissed and Ms Rosenberg’s claim was struck out on the ground that it was time-barred and an abuse of process. The Court made an order for 2B scale costs on this application, in favour of AMP.

Orders