Taylor v Vernon - [2023] NZHC 3445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1350

[2023] NZHC 3445

BETWEEN
DIANNE FAYE TAYLOR

Plaintiff

AND

SCOTT FRANCIS VERNON

First Defendant

SCOTT VERNON and HORIZON HURSTMERE TRUSTEE LIMITED

as trustees of the SCOTT FR TRUST Second Defendants

SCOTT VERNON and HORIZON HURSTMERE TRUSTEE LIMITED as

trustees of the HORIZON HURSTMERE TRUST

Third Defendants

HORIZON THORNES TRUST LTD as

trustees of the HORIZON THORNES TRUST

Fourth Defendant

SCOTT VERON and HORIZON HURSTMERE TRUSTEE LIMITED as

trustees of the HORIZON FAMILY TRUST Fifth Defendants

Hearing: On the papers

Appearances:

Jan McCartney KC/John Cox for the Plaintiff

Adam Ross KC/Nick Frith/ Olivia De Pont for the First Defendant Vivienne Crawshaw KC/Samantha Wilson for the Defendants

Judgment:

30 November 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for leave to file amended statement of claim]

TAYLOR v VERNON [2023] NZHC 3445 [30 November 2023]

This judgment was delivered by me on 30 November 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

TABLE OF CONTENTS

Paragraph

Introduction [1]

Is leave required under s 77.7(4) [4]

Plaintiff ’s submissions [4]

Defendants’ submissions [6]
Conclusion in respect of r 7.77(4) [7]

Should leave be granted? [9]

The plaintiff ’s submissions  [9]
The Defendants’ submissions  [11]
Conclusion in respect of grant of leave  [16]

Orders [17]

Solicitors:
Rennie Cox (John Cox), Auckland, for the Plaintiff
Wilson Harle (Felicity Monteiro/Portia Baine), Auckland, for the Defendants

Counsel:
Jan McCartney KC, Auckland, for the plaintiff
Vivienne A Crawshaw KC / Samantha Wilson, Hobson Chambers, Auckland, for the Defendants

Introduction

[1]By a minute dated 20 October 2023, the Court made the following directions:

(a)Within 5 working days from the date of this minute, counsel for the plaintiff is to file and serve submissions as to why leave to file the amended statement of claim dated 30 August 2023 is not required under r 7.77(4) and, in the alternative, if the Court does not agree that leave is not required, submissions as to why leave should be granted.

(b)Counsel for the defendants are to file submissions in opposition within 5 working days of receipt of counsel for the plaintiff’s submissions.

[2] Ms McCartney KC, for the plaintiff, filed a memorandum with her submissions dated 19 October 2023, counsel for the defendants filed a joint memorandum in response dated 27 October 2023, Ms McCartney filed a further memorandum dated 30 October 2023 seeking leave to make further submissions in reply to the defendant’s submissions, and counsel for the defendants filed a joint memorandum dated 31 October 2023 opposing the granting of leave to the plaintiff to make further submissions.

[3] The Court granted leave to Ms McCartney to file the further submissions by minute dated 15 November 2023.

Is leave required under r 7.77(4)?

Plaintiff ’s submissions

[4] Ms McCartney, for the plaintiff, submits that the cause of action in the amended statement of claim filed on 30 August 2023, (ASOC

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.

Continue reading Taylor v Vernon

Details

AGLC: Taylor v Vernon [2023] NZHC 3445
Case: [2023] NZHC 3445
Decision Date: 30 November 2023

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with an application for leave to file an amended statement of claim in the case of Taylor v Vernon. The primary dispute involves the validity and cancellation of relationship property agreements (RPAs) between the parties. The plaintiff, Dianne Faye Taylor, sought to amend her initial statement of claim to include additional causes of action regarding the cancellation of these agreements under the Contract and Commercial Law Act 2017. The defendants, Scott Francis Vernon and related entities, opposed the application, arguing that the amended statement of claim introduced new causes of action that arose after the original statement of claim was filed, thereby necessitating leave under Rule 7.77(4) of the High Court Rules.

The court had to determine whether leave was required under Rule 7.77(4) and, if so, whether such leave should be granted. The plaintiff argued that the cause of action in the amended statement of claim had not arisen since the filing of the original statement of claim and, therefore, leave was not necessary. Conversely, the defendants contended that the amended statement of claim introduced new causes of action that arose after the original statement of claim was filed, and that the plaintiff was attempting to circumvent the defendants' applications for a stay by bringing the new claims in the High Court. The court concluded that leave was indeed required under Rule 7.77(4) as the amended statement of claim introduced new causes of action which arose after the original statement of claim was filed.

In deciding whether to grant leave, the court considered the principles applicable to such applications, including the stage of the proceedings, the plaintiff's conduct, the presence of prejudice, and the avoidance of duplication of proceedings. The plaintiff argued that granting leave would allow the real controversy in the case to come before the Court without risk or prejudice and minimal delay. The defendants, on the other hand, argued that the plaintiff had already caused significant delay and sought to duplicate proceedings in the Family Court, which was the appropriate forum for such matters. The court held that the application for leave should be granted as the amended statement of claim was filed early in the proceedings, did not cause significant prejudice or delay, and allowed the real controversy to be before the Court. The court also noted that issues of duplication and the appropriate forum for the claims were to be determined in the context of the defendants' stay application.

The court granted the plaintiff's application for leave to file the amended statement of claim and made orders regarding the continuation of certain directions, the timing of the defendants' obligation to file an amended statement of defence, and the reservation of costs pending the determination of the defendants' stay application.

Orders