M H NATHAN AND ORS V G S SMITH AND ORS HC AK CIV 2007-404-000253

M H NATHAN AND ORS V G S SMITH AND ORS HC AK CIV 2007-404-000253

The Court has jurisdiction to review that part of the Associate Judge's decision relating to the strike out application; the memorandum of transfer and notice of change of ownership sent to the defendants' solicitors constituted sufficient notice of an equitable assignment so as to entitle the named transferees to sue and to bring the proceedings within the Limitation Act period; accordingly the strike out application was properly dismissed and the review is dismissed.

Citation
openlaw-d637e7b0_28bd_4d7f_9599_2fb0fb26a4f7.pdf
Parties
First Plaintiffs: Miles Hunter Nathan, James Denis Tait and Michael Gerard Curtis; Second Plaintiffs: Miles Hunter Nathan and Mary Nathan; First Defendants: Geoffrey Stephen Smith and Carolyn Smith; Second Defendant: Scott Bernard Macbeth; Third Defendant: Sumich Architects Limited; Fourth Defendant: Matthew Robert Chaplain; Fifth Defendant: Ronald William Robinson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 November 2009
Procedural Posture
Civil Contract and Tort (leaky Home) / Review of Associate Judge's Decision (application Under S26 P; Interlocutory Strike Out/summary Judgment Issues)
Outcome
Review dismissed; Associate Judge Robinson's decision declining to strike out the contractual causes of action is upheld
Legal Topics
Equitable Assignment of Choses in Action, Notice of Assignment, Limitation Period, Strike Out (r 15.1), Summary Judgment, Representative Pleadings, Notice to Solicitor Equals Notice to Client, Leaky Home Building Defects
Contract Tort (negligence) Property Law Equity Civil Procedure Limitation Law Building Law Equitable Assignment of Choses in Action +7 more

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Parties

Miles Hunter Nathan, James Denis Tait and Michael Gerard Curtis

First Plaintiffs

Miles Hunter Nathan and Mary Nathan

Second Plaintiffs

Geoffrey Stephen Smith and Carolyn Smith

First Defendants

Scott Bernard Macbeth

Second Defendant

Sumich Architects Limited

Third Defendant

Matthew Robert Chaplain

Fourth Defendant

Ronald William Robinson

Fifth Defendant

Procedural Posture

Civil Contract and Tort (leaky Home) / Review of Associate Judge's Decision (application Under S26 P; Interlocutory Strike Out/summary Judgment Issues)

Legal Issues

  1. 1 Whether this Court has jurisdiction to review the Associate Judge's decision on the strike out application
  2. 2 Whether notice of an equitable assignment of a chose in action must be given to the obligor before the assignee can sue and whether the documents sent (memorandum of transfer and notice of change of ownership) constituted sufficient notice when the transferees named differed from the assignees in the sale agreement

Ratio Decidendi

The Court has jurisdiction to review that part of the Associate Judge's decision relating to the strike out application; the memorandum of transfer and notice of change of ownership sent to the defendants' solicitors constituted sufficient notice of an equitable assignment so as to entitle the named transferees to sue and to bring the proceedings within the Limitation Act period; accordingly the strike out application was properly dismissed and the review is dismissed.

Court Disposition

Review dismissed; Associate Judge Robinson's decision declining to strike out the contractual causes of action is upheld

Orders

  • Review application dismissed
  • Costs awarded to the plaintiffs and to Mr and Mrs Nathan; costs fixed on a 2B basis