Schumacher v Summergrove Estates Limited - [2012] NZHC 3177

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8357 [2012] NZHC 3177

BETWEEN PAULINE MARY SCHUMACHER Plaintiff

ANDSUMMERGROVE ESTATES LIMITED First Defendant

ANDFORERUNNER SYSTEMS LIMITED Second Defendant

ANDDALE BENJAMINE SPEEDY AND JEANNE ELIZABETH MARY SPEEDY Third Defendants

Hearing: 2 May 2012
3 September 2012

Counsel: J Hunter for Plaintiff
D Gay for Defendants

Judgment: 27 November 2012

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON (strike out application)

This judgment was delivered by me on 27 November 2012 at 4.45 pm pursuant to

Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date ..........................

Solicitors:

Kendall Sturm & Foote, PO Box 659, Auckland
Palmer Theron, PO Box 2721717, Papakura 2244

SCHUMACHER V SPEEDY HC AK CIV-2011-404-8357 [27 November 2012]

Introduction

[1] The plaintiff, Ms Pauline Schumacher, applies to set aside the defendants’ notices of objection to jurisdiction. The defendants are Summergrove Estates Limited, Forerunner Systems Limited, and Mrs Jeanne Speedy and Mr Dale Speedy.

[2] Ms Schumacher has commenced two proceedings, the second of which gave rise to the defendants’ objection to jurisdiction. The first proceeding is a Property (Relationships) Act 1976 proceeding against her ex-husband, Mr James Speedy.1 In Ms Schumacher’s statement of claim for her second proceeding, she seeks a declaration that the defendants hold Summergrove House, a section of land and the house attached to it in the Republic of Ireland, by way of institutional constructive trust for her benefit; equitable damages to be quantified; interest; and costs.

[3] Ms Schumacher relies on only one cause of action in her second proceeding. Essentially, it is that she and her then husband, James Speedy, improved Summergrove House while they lived there with between 1993 and 2006 in the reasonable expectation of receipt of benefit in due course (James Speedy still lives there). She claims that it would be unconscionable for the defendants to retain the benefit of Summergrove House following the end of her marriage to James Speedy.

[4] Summergrove Estates owns Summergrove House. It is a company with a registered office in the Turks and Caicos Islands. When Summergrove Estates was incorporated for the purpose of purchasing Summergrove House in 1993, its directors were Jeanne Speedy (James Speedy’s mother), Tristiam Speedy (James Speedy’s now deceased father), Dale Speedy (James Speedy’s younger brother), Ms Schumacher (then known as Pauline Speedy) and James Speedy.

[5] Ms Schumacher and James Speedy were removed as directors in 2003. Summergrove Estates’ current directors are Jeanne Speedy and Dale Speedy.

[6] Summergrove Estates’ sole shareholder is Forerunner Systems which has a mortgage over Summergrove House. Forerunner Systems is an investment company,

1 That claim was commenced in the Family Court. The Family Court transferred the proceeding to the High Court on 10 August 2011 and its court file number is now CIV 2011-404-5042.

also incorporated in 1993, with a registered office in Manurewa. Jeanne Speedy and Dale Speedy are Forerunner Systems’ shareholders and directors. Ms Schumacher and James Speedy have never held shares in Forerunner Systems.

[7] The defendants oppose Ms Schumacher’s application for…

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 3177
Decision Date: 27 November 2012

CaseChat Overview and Summary

Pauline Mary Schumacher, the plaintiff, filed a legal claim against Summergrove Estates Limited, Forerunner Systems Limited, and Mr. and Mrs. Dale Benjamine Speedy, the defendants. Ms. Schumacher is seeking a declaration that the defendants hold Summergrove House, a property in the Republic of Ireland, by way of institutional constructive trust for her benefit, equitable damages to be quantified, interest, and costs. The defendants have objected to the court's jurisdiction, claiming the case should be heard in Ireland. The primary legal issues were whether the court had jurisdiction to hear the case and if New Zealand was the appropriate forum. The court found that the claim was in personam, not in rem, and therefore the court had jurisdiction. The court also found New Zealand to be the appropriate forum, considering factors such as the connection to New Zealand law, the convenience for the parties, and the availability of witnesses and evidence. The court set aside the defendants' notices of appearance objecting to jurisdiction, and denied the defendants' application to strike out or dismiss the proceeding against them. The plaintiff is entitled to costs on her application to set aside the defendants' notices of appearance objecting to jurisdiction and the defendants' application to strike out or dismiss the proceedings, to be awarded on a 2B basis, plus disbursements as fixed by the registrar.

Orders