Ryan v Sovereign Assurance Company

[2013] NZHC 3300

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-31544 [2013] NZHC 3300

BETWEEN  FRANCES HELEN RYAN Plaintiff

ANDSOVEREIGN ASSURANCE COMPANY LIMITED

First Defendant

BARNES JENKINS LIMITED Second Defendant

Hearing:                   25 November 2013

Appearances:           Mr Paul Dale for Plaintiff/ Respondent

Ms Jane Forrest & Mr Richard Flinn for Second
Defendant/Applicant

Judgment:                10 December 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [Application for Strike out /Summary judgment]

This judgment was delivered by me on

10.12.13 at 5 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RYAN v SOVEREIGN ASSURANCE COMPANY LIMITED & ANOR [2013] NZHC 3300 [10 December

2013]

Background

[1]      The background to the litigation in this case is that in 1993 the plaintiff entered into life and total permanent disability insurance policies with two insurers, namely Metropolitan Life and Sovereign Assurance.  Some time before entering into the policies, the plaintiff had experienced a number of episodes which subsequently led to the diagnosis that she suffered from epilepsy.  That diagnosis was not made until 2 December 1993.

[2]      There is a dispute between the parties about when the plaintiff completed the proposals for insurance.  It is common ground that she did so in conjunction with Mr Jenkins, a representative of the second defendant, who was an insurance broker.  The significance of the dispute about time is explained further below.  It is necessary to note, though, that the plaintiff acknowledges that she had had episodes of déjà vu in the past.  She did not make reference to these in her insurance proposal because she apparently did not regard them as being relevant.  However, in 1993, she had further episodes  which   caused  more  concern.     She  seems  to   have  experienced   a disassociated state which was evidenced by the fact that she was responding inappropriately to events in conversations occurring around her — for example by laughing when there was no reason to do so.  She also had what could be described as seizures or fits.  However, as I understand her position, unlike the déjà vu events which went back some years, she did not experience the second group of occurrences before September and October 1993.

[3]      The  plaintiff  says  that  she  completed  the  insurance  proposal  application forms at meetings with Mr Jenkins in July and August 1993.  Mr Jenkins however dated the application forms 15 October 1993 and 29 November 1993, and gives evidence that the application forms were forwarded to the insurance companies around about those respective dates.   He disputes that the application forms were signed some months previously and that he held them, which is the only possible inference if he is wrong.  The significance of the dispute about the dates will become apparent later in this judgment.

[4]      The application form which is dated 15 October 1993 included a question requiring the plaintiff to disclose whether she had ever had:

(iv)       Epilepsy,  fits,  dizziness,  depression  or  any  brain,  nervous  or  mental disorder?

[5]      She answered “no”.

[6]      In  the  application  form  dated  29  November  1993  there  were  also  other relevant health questions, including a question about whether she was being treated or had been treated for epilepsy, to which she answered “no”.

[7]      She answered affirmatively a question whether she was currently applying for or had insurance with Sovereign or any company for life, sickness, disability or accident insurance.

[8]      Having completed the application form, she pleads that she again expected it to be lodged immediately or shortly after the meeting.

[9]      The insurance company also draws attention to the fact that by 29 November

1993, the plaintiff had seen her GP on 1 November 1993 about attacks she had had.

[10]     The  plaintiff  pleads  that  from  about  the  late  1970’s  she  had  been experiencing minor episodes of déjà vu.   She further pleaded that these episodes were infrequent, that she had raised them with her general practitioner and that no investigations were undertaken.  That her GP advised her that déjà vu was “nothing out of the ordinary” and that there would be no necessity to investigate those minor episodes further.

[11]     The  plaintiff  further  pleads  that  in  or about  September  1993  she started experiencing   frequent   episodes   of   déjà   vu,   together   with   impairment   of consciousness.

[12]     She pleads that it was not until 15 October 1993 that Mr Jenkins lodged the application with Metropolitan and not until 29 November 1993 that he did the same with respect to the Sovereign application.

[13]     The statement of claim alleges that the plaintiff arranged an appointment with her GP  for 1  November  1993  to  discuss  the increasingly frequent  déjà vu  and impairment of consciousness referred to above.  Following that appointment she was referred to a neurologist.

[14]     Her statement of claim alleges that on 1 November 1993 the insurance policy with Metropolitan was issued.

[15]     It is alleged that on 1 November 1993 (the same day as the Metropolitan policy was issued) she attended a neurological consultant, Dr Anderson, and that on

2 December 1993 Dr Anderson provided a report to her GP diagnosing the plaintiff with temporal lobe epilepsy.

[16]     Unfortunately, from December 1993 onward the plaintiff has been receiving treatment for epilepsy and in late 2008 her condition had deteriorated to the point that she was no longer able to work and suffered from a total permanent disability. Therefore in or about 2008, the plaintiff, believing that she was insured for total permanent disability for work, lodged a claim with Sovereign under both policies seeking payment of the cover amount of $500,000.

[17]     She alleges that on or  about 16  November 2009 Sovereign declined  her claim.

[18]     It is then alleged that on or about 14 May 2010 the second defendant sought a reconsideration from Sovereign of her claim, but on 12 June 2010 Sovereign confirmed its earlier decision to decline on the basis of alleged material non- disclosure.

[19]     The plaintiff says that in or about 2011 she discovered for the first time that despite having completed the Metropolitan applications in July and August 1993 (as she alleges) they were not lodged with the relevant insurers until October and November 1993 respectively.

[20]     Much of the evidence about the state of the plaintiff’s health is the subject of controversy due to, of course, the many years that have passed since the events which gave rise to the plaintiff’s claim.

[21]     The principal reason why Sovereign declined to respond to the policies which the plaintiff claimed arose from the report that Dr Anderson wrote following his neurological examination of the plaintiff on 1 December 1993.

[22]     Prior to the plaintiff’s meeting with Dr Anderson, her GP had written a letter

of referral dated 1 November 1993 in which the GP stated:

Thank you for seeing [the plaintiff] who presented with a history of x 4 episodes of memory loss and inappropriate talking out of context to conversation.  She denies any stressor and is usually fit and well.  She is an intelligent lady not given to complaining – apparently her children and husband requested she see a doctor as she has no recall of these events.

[23]     In  his  report  Dr  Anderson  noted  that  the  plaintiff  had  attended  at  the consultation with her husband who helped to provide the history.   Dr Anderson reported that for at least 15 years and perhaps for longer the plaintiff has had partial seizures.   These episodes consisted of a particular déjà vu experience sometimes associated with a slight sensation of panic.  Dr Anderson recorded that until recently before his visit with the plaintiff, her episodes were not associated with impairment of consciousness and the episodes were infrequent.  Dr Anderson recorded that she would go for weeks without any episode and that she mentioned them to her GP about 15 years earlier but investigations were not undertaken.   In the two or three months prior to December 1993, she had had frequent episodes during which there was an impairment of consciousness.   Sometimes those attacks were preceded by déjà vu experiences, but the majority without any warning symptoms.  The episodes had been occurring on most days and there could be multiple attacks on the same day.  During the episodes, the plaintiff would be unaware of her surroundings and that if she spoke it could be out of context with what was happening at the time as evidence.  She was reported as laughing inappropriately.  She had been more tired than usual and also had more difficulty with her memory.  Dr Anderson concluded that the symptoms were typical of temporal lobe epilepsy.

[24]     Following Sovereign’s declinature on 16 November 2009, the plaintiff made a request for reconsideration.  Part of the material that was submitted in support of that was a further letter from Dr Anderson dated 27 April 2010.  He went over the matter of his 1 November 1993 interview with the plaintiff and said that at that stage she gave a history of symptoms over “the preceding 15 years”.  He said that he made a diagnosis of complex partial or temporal lobe epilepsy.  He added:

This was the first time that this diagnosis had been suggested.  Even though she had had symptoms for 15 years, she was unaware that those symptoms were due to epilepsy.   She had never received any treatment for epilepsy until that time.

…

It is not unusual for patients with temporal lobe epilepsy to have symptoms for a long time before the correct diagnosis is made.

The plaintiff’s claims

[25]     The plaintiff’s first cause of action against the second defendant is that the second defendant acted in breach of s 9 of the Fair Trading Act 1986 (FTA) by making misleading or deceptive statements to her.

[26]     The plaintiff alleges that at the July 1993 meeting, the second defendant or its representative said that she would be “better off replacing or renewing her then current  Metropolitan  policy  for  an  alternative  policy with  that  company.”    She alleges that at the same meeting she was told that, upon completion of the replacement Metropolitan application, the new application would be lodged immediately or shortly after the July 1993 meeting and that new cover would be issued.

[27]     The plaintiff alleges that at the August 1993 meeting, the second defendant or its representative orally stated that the she would be entitled to and ought to apply for additional life and total disability cover with Sovereign.  She alleges that at the same meeting the second defendant or its representative made express written and oral representations that the Metropolitan policy had already been lodged and was in force.  The express written representation that is referred was said to confirm an oral representation made at the same time.   The written aspect of the representation is

said to arise from the fact that when Mr Jenkins was completing the Sovereign application at the August 1993 meeting, he wrote on it that the plaintiff had or was applying for insurance elsewhere (the Metropolitan application).   She also alleges that  at  the  August  1993  meeting  the  second  defendant  or  its  representative represented to her by conduct that she would have life and total permanent disability cover in place with Sovereign and Metropolitan in the sum of $500,000 in July or August 1993.

[28]     The plaintiff alleges that the various representations amounted to misleading and  deceptive  conduct  because  Mr  Jenkins  did  not  complete  and  lodge  the application with Metropolitan until 15 October 1993 and the Sovereign application until 29 November 1993.   She says that as  a result, the second  defendant was induced to give up her Metropolitan policy and then entered into new insurance contracts  with  Metropolitan  and  Sovereign,  thereby  assuming  the  associated premium obligations that came with those policies.

[29]     The plaintiff further alleges that as a result of the misrepresentations, her cover with Sovereign under both policies has been declined for material non- disclosure for failing to disclose events that occurred between completing the application forms in July and August 1993 and the dates when the policies were issued: 1 November and 1 December 1993.    Further, as a result of the misrepresentations  she  gave  up  her  existing  Metropolitan  policy  and  has  being paying premiums for insurance.   She seeks damages of $500,000 representing the coverage she would otherwise have been entitled to from Sovereign which was the Metropolitan cover.  In the alternative, she seeks to recover all premiums paid for the Metropolitan and Sovereign policies since about the late 1970’s and seeks general damages together with exemplary damages for the second defendant’s “outrageous and or unconscionable conduct”.

[30]     The plaintiff’s second cause of action against the second defendant is for equitable estoppel based on the representations said to have been made at the July and August 1993 meetings that she would have life and total permanent disability insurance policies issued in or about July 1993 and August 1993.  She claims that in reliance upon those statements, she gave up her existing Metropolitan policy and as a

result suffered loss or damage of the kinds already set out when discussing the FTA

claim.

[31]   The plaintiff’s third cause of action against the second defendant is in negligence.  She pleads that Mr Jenkins breached a duty of care he owed to her by not lodging the applications immediately and/or in a timely fashion following the completion of those applications in or about July and August 1993.   She further alleges that the second defendant failed to inform her that she needed to disclose any further information relating to her health (if any) arising between the time of completing the applications in July and August 1993, and the date when the second defendant finally lodged those applications with Metropolitan and Sovereign.

[32]     The plaintiff alleges that the breach of duty of care came about as a result of the second defendant failing to lodge the Sovereign and Metropolitan applications until October and November respectively and through failing to inform the plaintiff of that fact (which she says only came to her attention much later when the policies were declined).  She seeks damages for negligence in respect of those matters.

The second defendant’s strike out and summary judgment applications

[33]     The second defendant applies to strike out the plaintiff’s causes of action or seeks to obtain summary judgment on them.  It relies on Rule 15.1(1)(c) and/or (d) of the High Court Rules, seeking strike out on the basis that the plaintiff’s statement of claim is frivolous or vexatious or otherwise an abuse of the process of the court, by virtue of the limitation defences.  The specific grounds that the second defendant relies upon are as follows.

Fair Trading Act 1986 cause of action

[34]     In  relation  to  the  plaintiff’s  claim  under  the  FTA,  the  second  defendant claims that the date on which the plaintiff ought reasonably to have discovered the likelihood of her loss or damage was on or about 16 November 2009; that being the date Sovereign declined her claim.   Under s 43(5) of the FTA, the plaintiff had a limitation  period  of  three  years  from  the  date  of  reasonable  discoverability  of

likelihood of loss or damage in which to bring her claim.   The second defendant claims that the plaintiff ought to have brought her claim by 16 November 2012. Because she did not bring her claim until 7 June 2013, her claim falls outside of the three-year limitation period and is time-barred.

Negligence cause of action

[35]     The second defendant claims that the plaintiff’s claim in negligence is time- barred by virtue of section 4(1) of the Limitation Act 1950 (“LTA”).  The plaintiff’s reliance on section 28(b) of the Limitation Act 1950 (on the basis that there has been a fraudulent concealment by the second defendant) is entirely without merit.

[36]     In relation to the equitable estoppels claim it is alleged that the plaintiff’s cause of action in equity is in essence an alternative pleading to a negligence or contractual claim which would be time-barred because a claim of negligence would have accrued on a date prior to 7 June 2007.   It is apparently accepted for the plaintiff that, subject to one proviso, a claim in negligence would have been time barred when it was introduced and likewise a claim in contract but that the plaintiff is able to avoid the provisions of s 4 of the Limitation Act 1950 by having recourse to  s  28(b)  of  the  Limitation  Act  1950  to  postpone  the  commencement  of  the limitation period under the Limitation Act.  The plaintiff says the time did not start running on her claim until on or after 12 June 2010 when the insurance company confirmed its earlier advice of declinature which was given 16 November 2009.  It is accepted for the plaintiff that unless deferment of the limitation period pursuant to s 28 can be contended for successfully the claim will be time-barred in negligence. So far as the FTA claim is concerned deferral of limitation is alleged to arise under s 43 of the FTA 1986.

Equitable estoppel cause of action

[37]     The plaintiff’s pleading in equitable estoppel seeks a remedy in equity which corresponds with a remedy at law which is time-barred.  The Court of equity should therefore, by analogy to the law, impose the same limitation.

[38]     The negligence claim, the second defendant alleges, is time-barred and the exceptional situation that is provided for by s 28 (which provides that where the claim is based on fraud or was fraudulently concealed) does not apply.

Strike out and summary judgment principles

[39]     There was no dispute between the parties concerning the principles that are to be applied when considering a strike out application.   The principles relating to strike out where there is a limitation defence are discussed  in  Matai Industries Limited v Jensen, where Tipping J observed that a defendant cannot apply to strike out a claim as disclosing no cause of action on the basis of a limitation defence, but can plead the defence and seek trial as a preliminary issue, or, in a clear case, apply to strike out the claim on the grounds that it is frivolous, vexatious, or an abuse of

process.1

[40]     The onus is on the defendant to show the plaintiff’s claim is time-barred; evidence can be tendered by affidavit; and the Court should be slow to strike out a claim, or cause of action altogether in limine, but, if the position is quite clear, then the defendant should not be vexed by having to go to full trial when the answer is obvious and inevitable.

[41]     The  principles  relating  to  summary  judgment  applications  brought  by defendants were settled by the Court of Appeal decision in Westpac Banking Corporation v M M Kembla New Zealand Ltd2  the effect of which is accurately stated in the head note in the New Zealand Law Reports:

The defendant ha[s] the onus of proving on balance of probabilities that the plaintiff could not succeed. It was not enough to have shown that there were weaknesses in the plaintiff's case. It was not appropriate to decide by summary procedure the sufficiency of the plaintiff's  claim save in clear cases, otherwise the defendant could force on  the plaintiff's case before completion of discovery and other interlocutory steps and the assembling of the plaintiff's evidence. The proceeding raised novel points as to the duty of standard  of  care  of  paying  banks  and  the  knowledge  to  be  imputed  to

1 Matai Industries Ltd v Jensen [1989] 1 NZLR 525 (HC) at 531.

2Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).

receiving banks in respect of electronic transfers of funds. The causes of action were arguable and required detailed consideration of the evidence, and difficult questions of law and policy

[42]     Before discussing the applications further, it is to be noted that the second defendant  does  not  take any particular  position  on  the  question  of  whether the plaintiff’s  applications  were  or  were  not  justifiably  declined  by  Sovereign. Ms Forrest acknowledged that the circumstances of the declinature by Sovereign was an important background matter that was relevant to the issue of whether the Court should grant the applications that the second defendant has made.

Fair Trading Act 1986

[43]     The claim which the plaintiff brings pursuant to the FTA is expressed in the following terms in the statement of claim, which states that the second defendant made the following representations to the plaintiff :

46.1At the July 1993 meeting express oral representation that she would be better off replacing or renewing her then current Metropolitan policy for an alternative Metropolitan Policy with $200,000.00 life cover and an extension for total permanent disability also in the sum of $200,000.00;

46.2At the July 1993 meeting an express oral representation that upon completion of the replacement Metropolitan application that shortly or immediately after the July 1993 meeting it would be lodged by Barnes  Jenkins  with  Metropolitan  and  the  new  cover  would  be issued;

46.3At the August 1993 meeting an express oral representation that the plaintiff would be entitled to and ought to apply for additional life and total permanent disability cover through another insurer, Sovereign;

46.4     Whilst  completing the  Sovereign  application  form at  the  August

1993 meeting Mr Jenkins/Barnes Jenkins made an express written and an express oral representation that the replacement Metropolitan

policy had already been lodged with Metropolitan and/or was in

force at that time…;

46.5…[A] representation by his/its conduct by the combined effect of all the actions set out at sub-paragraphs 46.1 to 46.4 above that the plaintiff had and/or would have life and total permanent disability cover  in  place  with  Sovereign  and  Metropolitan  in  the  sum  of

$500,000.00 in July and/or August 1993.

[44]     The plaintiff claims that as a result of those representations she was misled and induced to enter into the insurance policies with Metropolitan and Sovereign in

1993.

[45]     The  question  of  whether  the  substantive  FTA  cause  of  action  has  any prospects of success was not raised for consideration at the hearing on 25 November

2013 before me.  Attention was restricted to the limitation issue that arose in regard to the alleged representations.

[46]     The FTA contains the following limitation provision in s 43(5):

An application under subsection (1) may be made at any time within three years after the date on which the loss or damage, or likelihood of loss or damage, was discovered or ought reasonably to have been discovered.

[47]     In order to analyse what loss the plaintiff has suffered it is necessary to consider what course of action she was induced to take or deterred from taking as a result of the representations that allegedly were made.  It can be understood that if the plaintiff was induced to relinquish binding and effective policies as result of a representation  that  they  were  to  be,  or  had  been,  replaced  by an  equally valid successor policy/ies, then in the event that the subsequent policies were ineffective, the plaintiff would have suffered loss.  The loss for which she could recover would come down to a measurement in financial terms of the value of the policies that she relinquished.

[48]     The question of when the plaintiff discovered or ought reasonably to have discovered her loss as framed in the foregoing terms is the next question to be considered.  The second defendant contends that the loss was discovered when the notice of declinature was received on or about 16 November 2009.  On that basis, the discovery occurred more than three years prior to the date when the proceedings were commenced and therefore the FTA claim would be time-barred.  The period of three years or more prior to the commencement of the proceedings would be reached by counting back from the date of filing the proceedings which brings the time back to 7 June 2010.  If the date from which it was discovered or reasonably discoverable that loss had been suffered was the date of declinature, then the proceedings would be time-barred so far as the FTA cause of action was concerned.

[49]     Mr Dale submitted that the date of declinature was not however the relevant date.  He said that the plaintiff, with the encouragement of Mr Jenkins, was of the view that there was a good prospect of changing the insurer’s mind so that it would reverse its decision to decline cover.

[50]     In s 43(5) FTA what is under consideration as having been discoverable is the occurrence of loss or damage or likelihood of loss or damage.

[51]     The Court at trial, or in an appropriate case on an application for summary judgment or strike out, is required to consider whether it is more likely than not that a given date was the date of the relevant discovery, or the date when it ought reasonably to have been discovered.

[52]     The question then is whether prior to 7 June 2010 the Court can conclude on the balance of probabilities  that  the plaintiff  had,  or  ought  reasonably to  have, discovered that the loss had occurred.

[53]     In effect the applicant in this case is saying that it was reasonable for the plaintiff to have concluded at the time of declinature that she had incurred her loss. On the other hand, the position put forward by her counsel was that the plaintiff is able to argue that notwithstanding the advice that the policy cover had been declined, she still had reason to believe she would get cover.   It was said that she held the belief that the declinature notice was not conclusive and that there was a good chance that she would persuade the insurance company to reverse its position.

[54]     The question that I consider needs to be asked is whether, notwithstanding the advice of declinature, someone in her position could reasonably hold the belief that it was not likely that she was going to find herself uninsured.

[55]     The plaintiff’s counsel submitted that the notice of declinature contained references to the fact that she could seek a review of the insurance company’s decision from the insurance company’s claims committee.   This was the same committee that had made the decision of declinature.  She was advised that if after further consideration the complaint was not resolved, Sovereign would issue a letter

of Deadlock, following which she may be entitled to complain to the Insurance and

Savings Ombudsman which is an independent service which reviews complaints.

[56]     It can be assumed that the Sovereign claims committee would be unlikely to review its decision unless the plaintiff was able to point out that they had overlooked some key fact or argument in reaching their decision.  It would not be reasonable to hold a different view.

[57]     The review by Mr Jenkins in which the plaintiff assisted placed emphasis upon the fact that a formal diagnosis of temporal lobe epilepsy was not made until December 1993.  However, and this point was taken by the complaints committee in its reply, Mrs Ryan had failed to disclose her history of seizures and in particular answered  “no” to  the question  “Have  you  ever  had…  Fits…  or any nervous… disorder?”  After reviewing, what these expressions meant, the claims committee in its review went on to say:

The fact that the epilepsy diagnosis occurred after the risk commencement date of the policy is not relevant, as Mrs Ryan failed to disclose the information that sovereign asked for on the application form.  Mrs Ryan did have knowledge prior to the risk commencement date of her fits.  It would also seem reasonable to conclude that Mrs Ryan must have known that she had some form of nervous disorder or other illness, even though she did not know that it was epilepsy.

[58]     The part that Mr Jenkins played in putting forward a review needs to be considered.  The case for the plaintiff is dependent upon certain expressions of view by Mr Jenkins or other members of the second defendant firm, as supporting a conclusion that it was reasonable for the plaintiff to hold the opinion that even after the notice of declinature she still had a reasonable prospect of obtaining cover.

[59]     An extract from the affidavit of her husband sworn 3 September 2013 gives the flavour of the evidence in this regard.  He said:

18.Frances and I therefore discussed these issues with representatives of Barnes Jenkins including Mr Jenkins and Annalee Caltaux.   We explained the circumstances to Barnes Jenkins and they explained to us that they were also extremely surprised in those circumstances that Frances’ TPD claim was declined.  They informed us that from time to time insurers made fundamental errors and that in their opinion and from their experience it would simply be a matter of

getting a further short report from Dr Anderson confirming the position and in all likelihood Frances would then be indemnified. They also informed us that for that reason insurers always also made their first declinature letters open for reconsideration.  They told us to leave it in their hands.  On this basis we both believed that upon Sovereign receiving an explanation of this from Barnes Jenkins (coupled with an explanatory report from Dr Anderson) that Frances would then be promptly indemnified.  As a result on 14 May 2010

Barnes Jenkins wrote to Sovereign on Frances’ behalf and attached a

further short report from Dr Anderson.

[60]     Notwithstanding their optimistic expectations, when they received the letter back from the claims committee reconsidering the initial declinature they said:

It was at this stage and at this stage only that we both realised there was some real likelihood that Frances may not get cover for her TPD claim that Sovereign from her Sovereign policies. So we instructed lawyers.

[61]     It is not the case that there was no support for the view that the plaintiff apparently formed that the declinature was likely to be reversed.  If the evidence of herself  and  her  husband  is  to  be  believed,  they had  at  least  the  support  of  an experienced insurance broker, in whom they had confidence, whose opinion was that the insurance company had declined as its initial position but, in accordance with common practice, could be expected to favourably review their declinature when requested to.  Had there been no independent support for the view that the plaintiff apparently formed, it is likely that the Court would have concluded that her expectation of a favourable outcome following declinature was not a view that she could have reasonably held.

[62]     It is arguable that the Court should consider that the legal rights and wrongs aside, it was plausible that the plaintiff may have viewed initial declinature as being manoeuvring on the part of the insurance company in an attempt to persuade an insured party to drop the claim for cover.  Of course, the question of whether any credence is attached to the evidence that Mr Ryan puts forward is a matter ultimately to be resolved at trial if the matter goes that far.   For present purposes though, I accept that it is arguable that the plaintiff might have held the view that the declinature  was  not  the  final  word  on  the  subject  and  that  therefore  she  could continue to believe, on reasonable grounds, that she might yet recover under the policy.

[63]     The point which the claims committee noted in the second letter confirming declinature   was   that   the   formal   diagnosis   of   epilepsy  was   not   a   relevant consideration which bore upon liability on the policy that needed to be commented on.

[64]     The relevant chronology was therefore as follows:

16 November 2009                Declinature

14 May 2010  Request to review declinature

7 June 2010  Beginning of period of three years prior to filing proceedings

11 June 2010  Confirmation of declinature

7 June 2013  Claim filed

[65]     It must be accepted that the terms of disclosure which were required from the plaintiff included disclosure of any fits or nervous disorder irrespective of whether a medical specialist had offered a formal diagnosis based upon them.   Such a view might have been readily apparent to someone with experience in insurance law such as a lawyer.   It does not necessarily follow that the same point ought to have occurred to the plaintiff.  After all, her insurance broker apparently thought that that was a point worth raising in support of an application to review the initial decision of declinature.

[66]     On the basis of the foregoing conclusions, it could not be safely concluded on an interlocutory basis that the loss or damage ought reasonably to have been discovered prior to 7 June 2010.

[67]     It  follows  from  that  conclusion  that  the  application  to  strike  out  or  for summary judgment in respect of the FTA claim cannot succeed.

[68]     Before concluding this section reference needs to be made to the reference to the Savings and Insurance Ombudsman scheme.  It would appear that the plaintiff is unable to rely upon the fact that she could potentially have recourse to the above scheme as justifying on reasonable grounds a belief that she had not sustained loss. In the first place, the fact that she would have to have recourse to that scheme at all would only occur in circumstances where the insurance company had declined to recognise any claim under the policy.  In the second place, there is exempted from claims which can be investigated by the Insurance and Savings Ombudsman claims: 3

That relate to an insurance company’s decision…[to] refuse cover under an

existing policy or agreement, as a result of material non-disclosure.

[69]     Specifically, any view which the plaintiff might have held to that effect was factually wrong and could therefore not have been the foundation for a reasonable belief within the terms of the section.

[70]     However because of the conclusions that I came to earlier in this section of the judgment, the application for summary judgment or strike out cannot succeed so far as it concerns the FTA claim and it will be dismissed.

Claim in negligence

[71]   The plaintiff’s third cause of action against the second defendant is in negligence.  The plaintiff has foreshadowed her intention to rely on the doctrine of equitable   fraud   and   s 28(b)   of   the   Limitation   Act   1950   to   postpone   the commencement  of  the  limitation  period  in  s 4  of  that  Act  to  a  date  following Sovereign’s declinature of her claim in 2009.

[72]     In respect to this part of the application, the second defendant submits:

49.It is clear that if s 28(b) does not apply, the Plaintiff’s claim in negligence will be statute-barred, since the cause of action would have accrued at the date of inception of the relevant policies (and that is a position the Plaintiff has accepted).   For the purposes of the present  application  the  Second  Defendant  accepts  that  if  section

3 Insurance Council website  does  apply,  there  is  no  basis  for  strike  out  or  summary

judgment in relation to the Plaintiff’s cause of action in negligence. 4

[73]     I agree with the way the matter is explained in the above extract from the submissions of counsel for the second defendant and will now consider the application of s 28(b).

Application of Section 28(b) Limitation Act 1950

[74]     In order to invoke successfully the provisions of s 28(b), the plaintiff will have to establish that there was fraud on the part of the second defendant, and more particularly Mr Jenkins.  The section provides as follows:

Where,  in  the  case  of  any  action  for  which  a  period  of  limitation  is prescribed by this Act, either—

(a)       the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

(b)      the right of action is concealed by the fraud of any such person as aforesaid; or

(c)       the action is for relief from the consequences of a mistake,—

the  period  of  limitation  shall  not  begin  to  run  until  the  plaintiff  has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:

[75]     It is necessary to place in context the matters which are about to be discussed in relation to whether the limitation period relating to the negligence claim and the equitable estoppel claim are able to be deferred by virtue of operation of the section.

[76]     The case for the plaintiff is that it was not until December 1993 that she discovered that she was epileptic.  When she made no reference to that fact when completing the proposal forms she was not therefore guilty of any nondisclosure of the material fact, because she could not  disclose what she did not know.   She accepted that after December 1993 she would have had to disclose it because the report that she received from Dr Anderson, the neurologist, came to hand on or about

2 December 1993.

4 The submission is based upon Davys Burton v Thom [2009] 1 NZLR 437 (SC) (see especially [20] per Elias

CJ).

[77]     However the insurance company takes the view that there had been a history of seizures long before the date when Dr Anderson wrote his report.  I have already referred to the fact that in the letter of declinature the insurance company referred to the plaintiff having had partial seizures for at least 15 years prior to the date of the policies being issued.   In the later letter, dated 11 June 2010, reviewing the declinature, reference was also made to the fact that the GP had noted 1 November

2003 that “unable to remember…?  Petit mal – referral”.  The reference to referral appears to be to the intention to send the plaintiff to the neurologist for an opinion. Reference was also made in the second letter of declinature to the fact that Dr Anderson had noted that the plaintiff had mentioned the partial seizures to her doctor about 15 years ago but investigations were not undertaken.  The letter continued:

In the last two or three months she has had frequent episodes during which there is an impairment of consciousness.   These symptoms are typical of temporal lobe epilepsy.

[78]     He also referred to her having a history of symptoms over the preceding 15 years.  He also mentioned that she had a history of “x 4 episodes of memory loss and inappropriate talking out of context to conversation”.  It was also noted in the same letter from the insurance company that in her claim form dated 23 June 2009 the plaintiff said that her epilepsy symptoms first became apparent in October 1993, the symptoms being impairment of consciousness.

[79]     However, according to the plaintiff, it is still arguable on her part that her meetings with Mr Jenkins took place in July and August 1993.  Further, she claims that it is arguable that at that point she could have conscientiously made no mention of the losses of consciousness, seizures non-responsive conversation et cetera.   It was very important that when Mr Jenkins belatedly (as she alleges) submitted the proposals to the insurance company that he should have alerted her to the need to give up-to-date disclosure as necessary.  If nothing else, that would have saved her the expense of paying futile amounts for premiums over the following years.

[80]     Ms Forrest referred me to the decision of Mahon J in the case of Inca v

Autoscript in which the Judge made two statements concerning the requirements of

s 28(b).5     Before referring to those excerpts from the judgment of Mahon J it is necessary to make brief reference to the facts.  The plaintiff in that case alleged that it had contracted with a wholesale supplier of stationery products on the basis that the price rates would be the same for the plaintiff as they were for the wholesalers. Subsequently it discovered that in fact it had been required to pay more than those other wholesalers.  By the time it came to sue the limitation period had expired.  It sought deferment of the limitation period on the basis of fraudulent concealment.

Mahon J stated:6

From all this, it must follow in my opinion that apart from actual fraud, the only type of non-disclosure which would postpone the limitation period in a Court of Chancery was non-disclosure in breach of either a fiduciary duty or a special duty of disclosure inherent in the contract made by the parties or in some other legal relationship to which they had become committed. If that view is right, then it is of no avail merely to characterise non-disclosure as "unconscionable" or indeed to apply any other condemnatory epithet. The non-disclosure, no matter how unfair or inequitable in the colloquial sense, would not stop the statute running unless it constituted the breach of a recognised duty to disclose the relevant facts.

...…the limitation defence will be barred for the appropriate period either  where  there  is  dishonest  concealment  of  the  cause  of  action, equivalent to common law fraud, or where there is non-disclosure occurring in such circumstances as to amount to equitable fraud.   In either case the concealment must be wilful.  The Defendant must know all the facts which together constitute the cause of action.  For that reason, with great respect, I would have decided Moore v Russell Going Limited the other way.   The Defendant was unaware that his negligence had damaged the Plaintiffs.  He could not, in my view, have wilfully concealed a line of action which he did not know existed.   But however that may be, passive non-disclosure as opposed to active dishonest concealment of a known wrong, cannot amount to a "fraudulent concealment" unless there is a duty of disclosure created either by fiduciary status or by a special condition, express or implied, in the relevant contract or relationship.

[81]     Mahon J concluded that because only the plaintiff knew what the prices were that it was supplying stationery to the other wholesalers for, there arose under those circumstances, a “special duty of disclosure” inherent in the arrangement.  Since the supplier had overcharged the re-seller and not taken positive steps to disclose that fact, contrary to its special duty of disclosure, the elements of a fraudulent concealment were present and the time-bar extended until the re-seller’s knowledge

of its right of action.

5 Inca v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 (SC).

6 At 709 and 711.

[82]     Ms Forrest also referred to the judgment of Tipping J in Matai Industries in which Tipping J summarised the principles in the following way:7

(1)       The circumstances must be shown to be such that the [defendant] had a duty of disclosure. If he had no such duty then the fact that he did not disclose does not avail the plaintiff.

(2)       Having such duty the failure to disclose must be wilful. One cannot conceal something of which one is unaware.

(3)       For the concealment to be wilful the [defendant] must be shown to have known the essential facts constituting the cause of action. It is after all the right of action which must be concealed by the fraud of the defendant.

[83]     The position which the second defendant took was that there could not have been concealment by actual fraud.  It is first necessary to examine that part of the submission.

[84]     The  plaintiff  alleged  that  the  second  defendant  had  in  fact  behaved dishonestly in relation to the taking out of the new policies.   She alleged that the whole reason why the second defendant had advised her to take out the fresh policies and discontinue the old ones was because commission entitlements that accrued to the second defendant in respect to the predecessor policies were going to expire and a new commission stream would be generated if the plaintiff could be persuaded to enter into the new policies.  That is not exactly how Mr Dale put the matter but it captures the essence of the alleged dishonesty.  I should add that Mr Dale had not himself undertaken the drafting of the statement of claim.

[85]     I  should  also  add  that  the  second  defendant  emphatically  denies  any suggestion of misconduct and,  it must be said, explains plausibly why such an allegation is based upon a misunderstanding of the factual circumstances relating to commissions for policies of this type.

[86]     The plaintiff also apparently suggests that there was another less central but still important element of dishonesty on the part of the second defendant.   The explanation for this is that rather than the policies having been arranged in October

and November 1993 – which would “square” with the fact that they were signed in

7 Matai Industries Limited v Jensen [1989] 1 NZLR 525 (HC) at 536.

those months, the case for the plaintiff is that the second defendant was consulted in July and August 1993.  The important thing is that as a result of separate attendances on two separate months relating to each of the policies, it would be expected that the date that the policies were actually issued would be similarly staggered.  The theory which the plaintiff brings to the case is that the second defendant, perhaps having forgotten to action the proposals for the policies, contrived to make them appear as though they had been arranged on succeeding months allegedly in pursuance of an intention of misleading the plaintiff.  That is as far as the matter can be taken in this judgment because the argument is not easy to follow.

[87]     Mr Dale said there is an alternative reason why it could be argued that s 28(b) applied and that was because there had been the type of non-disclosure that Mahon J referred to in the Inca case.  The submission was made that again, on the assumption that the second defendant unjustifiably delayed in submitting the proposals for the plaintiff to the insurance companies, it had an obligation to revert to her to explain that there had been a delay and to warn her that it would now be necessary for her to give fresh disclosure of her present circumstances to cover any new personal circumstance which was material to the risk which the insurance companies were being asked to take in issuing policies.  This, Mr Dale submitted, was the equivalent of the obligation that the wholesaler had been under in the Inca case.  Given that the insurance brokers could for some purposes be regarded as the agent of the proposer, it was not difficult to then construct an argument that the second defendant owed a fiduciary obligation to the plaintiff which it had breached in not making a candid disclosure about the unjustified delay in submitting the proposals to the insurance companies.

[88]     From that starting point, Mr Dale further argued that there had been  an obligation to alert the plaintiff to the late filing of the proposals – again as she alleges them to have been filed late.

[89]     Mr Dale responded to the submission of Ms Forrest that it was unarguable that the meetings between the plaintiff and Mr Jenkins took place in July and August

1993.  He pointed to the fact that Mrs Ryan made reference to the fact that she had

visited her GP the month before and that fitted approximately with a visit by her to the doctor in May or June 1993.

[90]     My conclusions can now be set out.   The argument about whether or not Mr Jenkins was under a duty to disclose alleged late submission of the proposals only arises if it is arguable that there was a delay in lodging the proposals.

[91]     Given that there is a sharp conflict of evidence between the parties on this point, and the absence of any diary entries appointment books or other documentary evidence which might be decisive, it is impossible for the Court, particularly after the passage of nearly 20 years to decide on a summary basis which of the parties’ account is correct.  That being so, the issue must be approached on the footing that the plaintiff’s version of events is arguable.

[92]     The next question is whether it can also be argued that Mr Jenkins was under an obligation to inform the plaintiff about the asserted delay that had occurred.

[93]     The starting point is that an insurance agent is normally the agent of the insured: Gold Star Insurance Co Ltd v Gaunt.8   It may be assumed that the agent is under a responsibility to represent the interests of the client with skill and diligence. As well, it is likely that in the circumstances of this case the agent owes those duties of a fiduciary character to the principal including an obligation to act with absolute fairness and openness to the principal.9    From that starting point it seems to be at least arguable that Mr Jenkins as the agent of the plaintiff would have owed an obligation to her had there been delays in lodging the insurance proposals to inform her that such had been the case and to warn her of the need to review whether there had been any changes to the state of her health that had arisen in the intervening period and which she should disclose to the insurers.  If events had taken place as the plaintiff alleges, there would therefore have been an obligation on the part of the agent to disclose facts which are the essential facts upon which the cause of action in negligence  had  arisen.    The  requirement  which  Tipping  J  articulated  in  Matai

Industries Limited v Jensen was therefore satisfied.  Tipping J stated:

8 Gold Star Insurance Co Ltd v Gaunt [1998] 3 NZLR 80 (CA).

9 Farrington v O'Sullivan (1985) NZBLC 102, 168 (CA) and Laws of New Zealand, Agency at [64].

(3)       For the concealment to be wilful the [defendant] must be shown to have known the essential facts constituting the cause of action.  It is after all the right of action which must be concealed by the fraud of the defendant.

[94]     It  needs  to  be  stressed  that  wilfulness  in  regard  to  breach  of  fiduciary obligation – which would not constitute fraud as that term is commonly understood – will suffice.

[95]   It was contended for the second defendant that even had there been a concealment, it was not wilful.   Mr Jenkins, it was asserted, did not know that Mrs Ryan suffered from epilepsy and did not discover that fact until more than five years after the inception of the insurance policies.  But on the assumption that there was a delay of the kind that the plaintiff complains of (which cannot be ruled out at this interlocutory stage) he would have known about the fact that there had been a delay in submitting the policies and that if he did not tell the plaintiff of the need to review the disclosure that she had given to the insurance company there was a risk that the policies might later be vitiated for non-disclosure.

[96]     That   conclusion   is   therefore   fatal   to   the   application   for   summary judgment/strike out which the second defendant has brought.   The issue will ultimately have to be decided at trial where no doubt findings will be made about the key question of whether there was any delay in lodging the proposals with the insurance companies.

[97]     However it is still open to the second defendant to seek strike out orders in regard to the other claims, namely the equitable estoppel claim.

Limitation and the equitable estoppel claim

[98]     The second defendant seeks orders to strike out or for summary judgment in relation to the cause of action based upon equitable estoppel.

[99]   Ms Forrest in her submissions carried out a detailed analysis of the representations that were the basis for the cause of action founded upon equitable estoppel.  She submitted that while defences contained in the Limitation Act do not generally apply to claims for equitable relief, the present case was one where the

Court ought properly to apply the limitation provisions contained in the Act by analogy.

[100]   It is to be observed that the question of whether the plaintiff is able to bring a cause of action based upon equitable estoppel and claim compensation or damages in respect thereto was not a matter that was raised on the current strike out applications. The sole issue is whether any such claim would be barred by analogy with the Limitation Act.

[101]   Ms Forrest referred to s 4(9) of the Limitation Act 1950 which she said provides a “carve-out” from the general limitation period of six years which applies to actions of contract in tort10 for (inter alia) equitable relief.  It provides:

This section shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any provision thereof may be applied by the Court by analogy in like manner as the corresponding enactment repealed or amended by this Act, or ceasing to have effect by virtue of this Act, has heretofore been applied.

[102] Ms Forrest submitted that the proviso above codifies the long-standing equitable principle of limitation by analogy – that where a remedy sought in equity corresponds with a remedy at law, and the remedy at law is time-barred, the court of equity will act by analogy to the law and will impose the same limitation.11

[103]   Counsel drew my attention to the fact that the representations which are put forward as the basis for the cause of action in estoppel essentially mirror the representations and/or promises made in regard to the cause of action based on the FTA.

[104]   An early statement of the basis for the principle of limitation by analogy is to be found in the authority of Knox v Gye:12

Where the remedy in Equity is correspondent to the remedy at Law and the latter is subject to a limit in point of time by the Statute of Limitations, a

10 Limitation Act 1950, s 4.

11 Knox v Gye (1872) LR 5HL 656 (HL) at 674; Matai Industries v Jensen [1989] 1 NZLR 525 (HC).

12  See the discussion generally in Andrew Butler (ed) Equity and Trusts in New Zealand (2nd  ed, Brookers, Wellington, 2009) at paragraphs 38.1.3 and following.

Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation.

[105]   The reason why equity draws such an analogy is that equity’s concurrent

jurisdiction should not be used to undermine the common law limitation.13

[106]   The principles relevant to limitation by analogy were canvassed in Matai Industries from p 542 in which Tipping J considered the causes of action pleaded – negligence and breach of fiduciary duty.  He commented on the repetition of certain factual matters in each cause of action as pleaded, noting, however, that the actual content of each duty pleaded was different: 14

In the first the receiver is accused of negligence in his conduct in a number of ways. In the second the duty is said to have been not to permit the conduct of the receivership to be directed, dictated or influenced by the other defendants.

[107]   The Court concluded:15

In view of the way however in which the essential allegations are framed and the exact identity of the loss claimed on both causes of action, albeit that further losses are encompassed in the second cause of action, this seems to me to be a case where in substance the plaintiff is endeavouring to put the same essential allegations on two different bases, one at law in negligence and the other in equity by asserting breaches of fiduciary duty. He who seeks equity must do equity and it would seem to me to be highly inequitable that with this degree of correspondence a plaintiff in equity could circumvent the barring of his cause of action at law.

[108]   Reference was made by counsel for the second defendants to a passage from the judgment of the Court of Appeal in Johns v Johns which canvassed the principles pertaining to estoppel by analogy.  There the Court commented that:16

…[t]he fiduciary claim will always prima facie survive the statutory barring of an allied common law or indeed equitable claim. There will be a bar by analogy only when the fiduciary claim parallels the statute-barred claim so closely  that  it  would  be  inequitable  to  allow  the  statutory  bar  to  be outflanked  by  the  fiduciary  claim.  In  order  to  determine  how  close  the parallel is the Court must examine not only the underlying facts but also the nature of the relationship between the parties and the policy and purpose of the  different  causes  of  action.  If  there  is  a  sufficient  difference  in  any

13 Molloy v Mutual Reserve Life Insurance Co (1906) 94 LT 756 (CA).

14 Above n 12, at 544 line 16.

15 At 544 line 32.

16 Johns v Johns [2004] 3 NZLR 202 (CA) at [80] and [81].

material respect, the suggested parallel is unlikely to be close enough to make it appropriate in equity to apply an analogous bar.

… The judgments in Matai Industries and S v G should not be read as suggesting that the issue can be concluded solely by reference to the degree of concurrence of the factual allegations. That of course must be the first focus because, if there is no sufficient degree of concurrence in that respect, the suggested analogy is likely to fail at that point. If, however, there is factual concurrence in the sense that the different causes of action are simply different ways of putting the same factual complaint, and there are no policy or other reasons militating against it, the case for an analogous bar is likely to have been made out.

[109]   In that case, it was sought to assimilate the common law claims to a claim for breach of fiduciary obligation which would not be covered by the Limitation Act

1950 unless by analogy.  Ms Forrest correctly submitted that in the final result in that case,  the  Court  did  not  assimilate  the  positions  and  apply the  statutory bar  by analogy.   Specific reasons relied on in that case do need to be gone into in the circumstances of the present proceeding other than to note that the respondents in that case were sued in their dual capacities of company directors and trustees.  The two different capacities in which they were sued were enough to displace arguments that the claims were sufficiently analogous to require the Court to import into the equitable proceeding the statutory limitation bar.

[110]   The claims which are brought against the second defendant in this case have two components.  First, they are based upon expressions of opinion and advice given during 1993, the subject of which can be broadly described as the advisability or otherwise of the plaintiff relinquishing existing life and disability policies and replacing them with new policies.

[111]    The second foundation of the claim arises from the fact that the second defendant allegedly unjustifiably delayed submitting the policies, which gave rise to complications in that the disclosure which the plaintiff says she made of her circumstances and which would have been unobjectionable turned out, because of the passage of time, to be arguably incorrect because her health had changed in the meantime.

[112]   On the assumption that it is possible for a claim of equitable estoppel of this kind to be brought, the first feature that emerges is that the specific claim brought

here is not linked to any particular aspect of a personal relationship between the representor and representee.  A person with no particular prior association with the representor can bring him/her to account for material representations that cause the representee to act or change position to his/her detriment.  There is no requirement of a contractual or fiduciary relationship as a precondition to relying upon such statements.  On that basis, the proposed cause of action has similarities to a person who sues for negligent misstatement or deceit.  Further, the remedy which is sought, damages, is the primary remedy that is available at common law.  The remedy does not, for example, seek the recovery of property which is subject to a trust protecting the proprietary interests of the beneficial owner to mention another possible point of contrast.   The representations in fact which are relied upon are identical to those which underlie the claim for relief pursuant to the FTA.  Although the plaintiff did not do so, she could have brought a claim founded on the representations in which the cause of action was negligent misstatement which would have been subject to the Limitation Act defences.

[113]   As well, the status in which Mr Jenkins was acting is no different in one course of action from the other.  He was acting as the insurance broker or agent of the plaintiff.

[114]   The conclusion I therefore come to is that the time bar by analogy ought to apply to the claim based upon equitable estoppel.

Summary

[115]   Whether the first cause of action under the FTA should be struck out or summary judgment granted on it for the second defendant involves consideration of when the plaintiff discovered or ought reasonably to have discovered her loss.  It is arguable that someone in her position could reasonably hold the belief that she was not likely to find herself uninsured.   The belief that the plaintiff says she held concerning this issue has some support from an insurance broker.   Overall, it is arguable that the plaintiff might have held the view that initial declinature was not final.  It cannot be concluded on an interlocutory basis that the loss or damage ought to have been discovered prior to 7 June 2010.  The application to strike out or for summary judgment is dismissed.

[116]   The plaintiff argued under the third cause of action that Mr Jenkins, having allegedly belatedly submitted the proposals, should have alerted her to the necessity to provide up to date disclosure and that to not do so was negligent.  The Court is unable to determine whether the proposals were lodged late on a summary basis so the issue had to be approached on the basis that the plaintiff’s version of events is arguable.  Whether this cause of action should be struck out or summary judgment entered for the defendant involves consideration of whether Mr Jenkins was under a special duty of disclosure.  As agent for the plaintiff, it is at least arguable that Mr Jenkins  should  have  informed  the  plaintiff  of  delays,  assuming  that  there  were delays.  The application for strike out and/or summary judgment is dismissed.

[117]   Under the second cause of action the plaintiff relied on equitable estoppel. The second defendant argued that the limitation provisions in the Limitation Act applied by analogy to the claim.  The representations which were put forward as the basis for the cause of action mirror those that were put forward as the basis for the cause of action based on the FTA.   The claim under this head was based on expressions of opinion and advice given in 1993, relied on by the plaintiff, and also the alleged unjustifiable delay of the second defendant in submitting the proposals. The claim is not based on any particular aspect of a personal relationship between the representor and representee.  The representations are identical to those under the FTA claim.  This is similar to an action for negligent misstatement or deceit, which would have been subject to the Limitation Act defences.   The remedy sought is damages, not an equitable remedy.  The time bar by analogy applies.  This cause of action is struck out.

Costs

[118]   The parties should confer on the matter of costs and if they are unable to agree they are to file memorandum not exceeding five pages on each side within ten

working days of the date of this judgment.

J.P. Doogue

Associate Judge