S E BRENSSELL v C W BRENSSELL [2013] NZHC 2280

S E BRENSSELL v C W BRENSSELL [2013] NZHC 2280

Court held that paragraphs 13(c) and 13(f) (statements of settlor intention) may remain but paragraph 13(e) (use of 'fettered' and pleading inconsistent with how discretions operate) and particulars 45(d) and 45(e) (insufficient particulars of alleged preference and lack of minutes) do not disclose sufficiently particularised or legally coherent causes of action and are struck out with leave to re‑plead; if plaintiffs pursue relief concerning sale of land they must plead separate causes (Contractual Mistakes Act and equitable relief) clearly and with prayers for relief; further amended statement of claim required within 20 working days and costs awarded to defendants on a 2B basis.

Citation
[2013] NZHC 2280
Parties
First Plaintiff: Stanley Edlin Brenssell; Second Plaintiff: Roger Stanley Brenssell; Third Plaintiff: Wendy Alice Miller; First Defendant: Christopher Warrack Brenssell; Second Defendant: Clifford Barry Brenssell; Third Defendant: Aaron James Brenssell; Fourth Defendant: Shawn Nathan Brenssell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 September 2013
Procedural Posture
Civil Trust and Contractual Mistake Dispute / Interlocutory Strike‑out Application (application Under High Court Rules R15.1)
Outcome
Application partly allowed and partly dismissed: paras 13(c) and 13(f) retained; paras 13(e), 45(d) and 45(e) struck out; leave to re‑plead granted; further amended statement required within 20 working days; costs to defendants on 2B basis.
Legal Topics
Rectification, Contractual Mistake (contractual Mistakes Act 1977), Breach of Fiduciary Duty, Strike Out (high Court Rules R15.1), Pleadings and Particulars
Trusts Equity Contract Law Civil Procedure Rectification Contractual Mistake (contractual Mistakes Act 1977) Breach of Fiduciary Duty Strike Out (high Court Rules R15.1) +1 more

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Parties

Stanley Edlin Brenssell

First Plaintiff

Roger Stanley Brenssell

Second Plaintiff

Wendy Alice Miller

Third Plaintiff

Christopher Warrack Brenssell

First Defendant

Clifford Barry Brenssell

Second Defendant

Aaron James Brenssell

Third Defendant

Shawn Nathan Brenssell

Fourth Defendant

Procedural Posture

Civil Trust and Contractual Mistake Dispute / Interlocutory Strike‑out Application (application Under High Court Rules R15.1)

Legal Issues

  1. 1 Whether specific paragraphs of the amended statement of claim disclose a reasonably arguable cause of action or are frivolous/vexatious or an abuse of process
  2. 2 Whether plaintiffs may plead settlor intentions in background and whether references to subsequent sale of land are permissible or necessary
  3. 3 Whether the term 'fettered' and related pleading correctly state the legal effect on trustees' discretions

Ratio Decidendi

Court held that paragraphs 13(c) and 13(f) (statements of settlor intention) may remain but paragraph 13(e) (use of 'fettered' and pleading inconsistent with how discretions operate) and particulars 45(d) and 45(e) (insufficient particulars of alleged preference and lack of minutes) do not disclose sufficiently particularised or legally coherent causes of action and are struck out with leave to re‑plead; if plaintiffs pursue relief concerning sale of land they must plead separate causes (Contractual Mistakes Act and equitable relief) clearly and with prayers for relief; further amended statement of claim required within 20 working days and costs awarded to defendants on a 2B basis.

Court Disposition

Application partly allowed and partly dismissed: paras 13(c) and 13(f) retained; paras 13(e), 45(d) and 45(e) struck out; leave to re‑plead granted; further amended statement required within 20 working days; costs to defendants on 2B basis.

Orders

  • Paragraphs 13(e), 45(d) and 45(e) struck out
  • Application to strike out dismissed as to paragraphs 13(c) and 13(f)