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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000767 [2017] NZHC 2232

BETWEEN
REBECCA ROSENBERG

Plaintiff

AND

AMP SERVICES (NZ) LIMITED Defendant

Hearing:
13 September 2017 with additional written submissions 29

September 2017, 5 October 2017 and 9 October 2017

Appearances:

R Rosenberg (Plaintiff/Respondent) in person - attendance excused

J A Knight/S Kettani for the Defendant/Applicant

Judgment:

15 September 2017

Reissued:

13 November 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
[on defendantʼs strike out and other applications]

ROSENBERG v AMP SERVICES (NZ) LIMITED [2017] NZHC 2232 [15 September 2017]

Introduction

[1] Rebecca Rosenberg is the daughter of the late Allen Rosenberg (“the father”).

The father died on 18 April 2006.

[2] On 15 April 2016, Ms Rosenberg commenced this proceeding. She claims that the defendant (then the National Mutual Life Association of Australia Ltd (“NMLA”)) did not pay a life insurance benefit following the death of the father. Her claim also extends to superannuation and “any other outstanding payments”.

[3] Ms Rosenberg seeks damages and an order for disclosure of information.

The defendant’s applications

[4] The defendant applies for an order striking out the plaintiff’s claim in its

entirety. Alternatively, it seeks security for costs.

Procedure

[5] On 10 May 2017, the Court made directions for the hearing of the defendant’s application on 4 July 2017. It made standard directions as to submissions and other matters. Ms Rosenberg subsequently sought and was granted an adjournment to 13 September 2017.

[6] The parties then filed their submissions – the defendant on 22 July 2017 and

Ms Rosenberg (48 pages) on 6 September 2017.

[7] On 6 September 2017, Ms Rosenberg, when filing her submissions, also stated by email that she was overseas and could not handle any mental stress. She asked whether it was possible that her attendance be excused and that the Court rely on her written submissions.

[8] By Minute I excused Ms Rosenberg’s appearance. I explained in the Minute that the hearing would proceed on 13 September 2017. Mr Knight would have the opportunity to speak to his submissions. Ms Rosenberg’s written submissions would be considered by the Court and treated as her full submission.

[9] That is how the hearing then took place, with Ms Rosenberg’s appearance excused.

The strike out application

Striking out a claim – the principles

[10] High Court Rule 15.1 makes provision for orders striking out all or part of a pleading. In this case the defendants/applicants invoke r 15.1(1)(a) (no reasonably arguable cause of action) and r 15.1(1)(d) (abuse of the process of the court).

[11] I adopt the following as principles applicable to the consideration of this application:1

(a) The Court is to assume that the facts pleaded are true (unless they are entirely speculative and without foundation).

(b) The cause of action must be clearly untenable in the sense that the

Court can be certain that it cannot succeed.

(c) The jurisdiction is to be exercised sparingly and only in clear…

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: [2017] NZHC 2232
Decision Date: 15 September 2017

CaseChat Overview and Summary

Rosenberg v AMP Services (NZ) Limited concerns a claim brought by Rebecca Rosenberg against AMP Services (NZ) Limited (formerly National Mutual Life Association of Australia Ltd) for failure to pay life insurance benefits following the death of her father. Rosenberg's claim also extends to superannuation and other outstanding payments. The defendant has applied to strike out the plaintiff's claim in its entirety or, alternatively, for security for costs.

The court considered two legal issues. The first issue was whether Rosenberg had the standing to pursue the claims. The defendant argued that Rosenberg did not have standing because she was neither a party to nor beneficiary of the policy nor an executor or administrator of the estate of the father. The court found that Rosenberg did not have standing to pursue the claims as she was not an executor or administrator of the estate. The second issue was whether the claim was time-barred. The court did not find it necessary to determine this issue as Rosenberg's lack of standing was determinative of the application.

The court found that Rosenberg did not have standing to pursue the claims, and therefore, the defendant's application to strike out the claim was successful. The court also found that Rosenberg's alternative request to adjourn the proceeding to allow time for an election to be made under the Property (Relationships) Act 1976 was not going to occur. The court did not find it necessary to determine whether the claim was time-barred. The alternative application for security for costs fell away by reason of the striking out of the claim.

The court ordered that the plaintiff's claim in this proceeding is struck out and costs and disbursements are reserved. The court reserved costs and directed the parties to attempt to agree on costs, with the defendant to file a memorandum followed by the plaintiff's memorandum within five working days thereafter. If the parties are unable to agree on costs, the court will determine costs on the papers.

Orders