ALYCE INGRID WICKSTEED V TAURANGA MUSIC WORLD HC TAU CIV 2008 470 907

ALYCE INGRID WICKSTEED V TAURANGA MUSIC WORLD HC TAU CIV 2008 470 907

The plaintiff's claim was struck out because she failed to provide credible documentary or contemporaneous evidence of a separate loan; the alleged advances were prima facie relationship property dealt with by the 1989 and 1994 relationship property agreements; the $300,000 receipt in 2006 was evidenced by a deed acknowledging indebtedness to Mr Cambie (i.e. a loan to the plaintiff), not an acknowledgement of a prior company debt, and there was no reliable evidence of a fresh accrual. The claim is therefore statute barred and, in any event, the dispute about relationship property should be pursued through Family Court process.

Citation
openlaw-918c3c3c_eb02_4a32_b13a_ccd9aec6598c.pdf
Parties
Plaintiff/respondent: Alyce Ingrid Wicksteed; Defendant/applicant: Tauranga Music World
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 November 2008
Procedural Posture
Civil / Strike Out Application
Outcome
Defendant's application for strike out granted; plaintiff's claim struck out
Legal Topics
Relationship Property, Loan / Shareholders' Advance, Limitation Act 1950, Strike Out, Security for Costs
Family Law Contract Civil Procedure Limitation Law Relationship Property Loan / Shareholders' Advance Limitation Act 1950 Strike Out +1 more

Case Brief

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Parties

Alyce Ingrid Wicksteed

Plaintiff/respondent

Tauranga Music World

Defendant/applicant

Procedural Posture

Civil / Strike Out Application

Legal Issues

  1. 1 Whether the plaintiff's claim is statute barred under the Limitation Act 1950
  2. 2 Whether payments in 2006 constituted an acknowledgement creating a fresh cause of action
  3. 3 Whether alleged 1989 loan was separate from relationship property and therefore maintainable in High Court

Ratio Decidendi

The plaintiff's claim was struck out because she failed to provide credible documentary or contemporaneous evidence of a separate loan; the alleged advances were prima facie relationship property dealt with by the 1989 and 1994 relationship property agreements; the $300,000 receipt in 2006 was evidenced by a deed acknowledging indebtedness to Mr Cambie (i.e. a loan to the plaintiff), not an acknowledgement of a prior company debt, and there was no reliable evidence of a fresh accrual. The claim is therefore statute barred and, in any event, the dispute about relationship property should be pursued through Family Court process.

Court Disposition

Defendant's application for strike out granted; plaintiff's claim struck out

Orders

  • Strike out the plaintiff's proceeding
  • Plaintiff to pay defendant's costs calculated on a Category 2B basis; the Court will determine costs if counsel cannot agree