BP GARMONSWAY V RAGLAN DEVELOPMENTS LIMITED AND ANOR HC HAM CIV 2006-419-1066

BP GARMONSWAY V RAGLAN DEVELOPMENTS LIMITED AND ANOR HC HAM CIV 2006-419-1066

Claims against the proposed third and fourth defendants accrued in 2001–2002 when funds or property interests were received or conveyed; those claims are of the remedial constructive trust/fraud category so the Limitation Act applies; s21(1)(b) does not apply because the defendants were not trustees from the outset;...

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Citation
openlaw-ad2fecae_d1a8_40b6_8ace_a0f62eb3ed03.pdf
Parties
Plaintiff: Brian Patrick Garmonsway; First Defendant: Raglan Developments Limited; Second Defendants: Allan John Crafar; Frank Robert Crafar; Elizabeth Jean Crafar; Proposed Third Defendant: Plateau Farms Ltd; Proposed Fourth Defendant: Mrs Jane Kay
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 May 2009
Procedural Posture
Civil Contract and Equitable Claims / Interlocutory Application for Joinder of Third and Fourth Defendants
Outcome
Application to join Plateau Farms Ltd and Mrs Jane Kay dismissed; second defendant entitled to costs; related applications adjourned
Legal Topics
Joinder, Statute of Limitations, Constructive Trust, Knowing Assistance, Tracing Orders, Striking Out
Civil Procedure Equity Contract Trusts Limitation Law Joinder Statute of Limitations Constructive Trust +3 more

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Parties

Brian Patrick Garmonsway

Plaintiff

Raglan Developments Limited

First Defendant

Allan John Crafar; Frank Robert Crafar; Elizabeth Jean Crafar

Second Defendants

Plateau Farms Ltd

Proposed Third Defendant

Mrs Jane Kay

Proposed Fourth Defendant

Procedural Posture

Civil Contract and Equitable Claims / Interlocutory Application for Joinder of Third and Fourth Defendants

Legal Issues

  1. 1 Whether plaintiff has standing to sue individually for partnership/ B & B losses
  2. 2 Whether claims against proposed third and fourth defendants are statute barred under Limitation Act 1950
  3. 3 Whether equitable nature of claims avoids limitation (s21(1)(b)) or is postponed by s28

Ratio Decidendi

Claims against the proposed third and fourth defendants accrued in 2001–2002 when funds or property interests were received or conveyed; those claims are of the remedial constructive trust/fraud category so the Limitation Act applies; s21(1)(b) does not apply because the defendants were not trustees from the outset; s28 does not postpone limitation because no pleaded fraud concealed the cause and plaintiff could with reasonable diligence have discovered the transactions; therefore joinder is barred and must be dismissed.

Court Disposition

Application to join Plateau Farms Ltd and Mrs Jane Kay dismissed; second defendant entitled to costs; related applications adjourned

Orders

  • Application for joinder of proposed third and fourth defendants dismissed
  • Plaintiff's affidavit filed after hearing admitted