W.F. DU PLESSIS AND C. DU PLESSIS V BAKER AND ANOR HC CHCH CIV-2005-412-713

W.F. DU PLESSIS AND C. DU PLESSIS V BAKER AND ANOR HC CHCH CIV-2005-412-713

The strike out application was dismissed because the amended statement of claim sufficiently pleaded mutual promises forming consideration and a tenable cause of action against the first defendant who undertook to arrange matters through his control of the second defendant and O'Neill; the Contracts Enforcement Act 1956 did not render the pleading unenforceable because the claim is not pleaded as a guarantee to answer for a third party's debt; a fiduciary duty was tenably pleaded given the plaintiffs' vulnerability and the first defendant's dominant role; third party discovery from ASB and LIC was ordered in modified form with counsel-only disclosure and time-limitation from January 2004...

Citation
openlaw-833191b9_e4d2_4bd1_94b4_baf22ff70a54.pdf
Parties
Plaintiffs: W.F. Du Plessis and C. Du Plessis; First Defendant: G.H. Baker; Second Defendant: Stationview Farm Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 July 2006
Procedural Posture
Civil Claim (breach of Contract, Fiduciary Duty, Trust/constructive Trust) / Application to Strike Out Causes 2 4 and Application for Third Party Discovery; Judgment on Applications
Outcome
Strike out application dismissed; third party discovery granted in part (subject to conditions); plaintiffs awarded costs on strike out on a 2B basis; discovery costs reserved
Legal Topics
Strike Out Application, Third Party Discovery, Fiduciary Duty, Estoppel, Contracts Enforcement Act 1956 S2, Sharemilking Arrangements, Director Duties, Constructive Trust/proprietary Relief
Contract Law Equity and Fiduciary Obligations Company Law Civil Procedure Banking Law Property/asset Tracing Strike Out Application Third Party Discovery +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 3 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

W.F. Du Plessis and C. Du Plessis

Plaintiffs

G.H. Baker

First Defendant

Stationview Farm Limited

Second Defendant

Procedural Posture

Civil Claim (breach of Contract, Fiduciary Duty, Trust/constructive Trust) / Application to Strike Out Causes 2 4 and Application for Third Party Discovery; Judgment on Applications

Legal Issues

  1. 1 Whether plaintiffs have pleaded an enforceable contract against the first defendant despite involvement of the second defendant and O'Neill Road Limited
  2. 2 Whether consideration has been sufficiently pleaded
  3. 3 Whether the Contracts Enforcement Act 1956 s2(1)(d) (guarantee/writing requirement) renders the pleaded contract unenforceable

Ratio Decidendi

The strike out application was dismissed because the amended statement of claim sufficiently pleaded mutual promises forming consideration and a tenable cause of action against the first defendant who undertook to arrange matters through his control of the second defendant and O'Neill; the Contracts Enforcement Act 1956 did not render the pleading unenforceable because the claim is not pleaded as a guarantee to answer for a third party's debt; a fiduciary duty was tenably pleaded given the plaintiffs' vulnerability and the first defendant's dominant role; third party discovery from ASB and LIC was ordered in modified form with counsel-only disclosure and time-limitation from January 2004...

Court Disposition

Strike out application dismissed; third party discovery granted in part (subject to conditions); plaintiffs awarded costs on strike out on a 2B basis; discovery costs reserved

Orders

  • Strike out application in respect of causes 2, 3 and 4 dismissed
  • Order that ASB Bank Limited give discovery of records relevant to the period from January 2004 onwards limited to material concerning the alleged contract and financing arrangements, to be provided to counsel only