MURREN v SCHAEFFER [2017] NZHC 163

MURREN v SCHAEFFER [2017] NZHC 163

Pleaded particulars did not demonstrate the requisite predominant extraneous purpose distinct from the relief sought and thus abuse of process defences and counterclaims disclosed no reasonably arguable cause of action and were struck out; malicious prosecution is not a proper defence and the counterclaim is premature because the tort requires prior resolution in the claimant's favour and therefore the malicious prosecution pleadings disclose no arguable cause of action; consequential non-party discovery application failed.

Citation
[2017] NZHC 163
Parties
First Plaintiff: James Joseph Murren as trustee of the James J Murren Spendthrift Trust; Second Plaintiff: Daniel Lee; Defendant: Glenn Schaeffer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 February 2017
Procedural Posture
Civil Commercial Dispute (misrepresentation, Negligence, Statutory Claims) / Pre Trial Applications: Strike Out Affirmative Defences and Counterclaims; Application for Non Party Discovery
Outcome
Court struck out affirmative defences and counterclaims for abuse of process and malicious prosecution and dismissed non-party discovery application; costs reserved.
Legal Topics
Strike Out Application, Non Party Discovery, Abuse of Process, Malicious Prosecution, Limitation Periods, Misrepresentation (negligent, Fraudulent, Intentional), Fair Trading Act 1986, Nevada Deceptive Trade Practices Act
Civil Procedure Tort Contract Equity Statutory Consumer Law International Statute (nevada) Strike Out Application Non Party Discovery +6 more

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Parties

James Joseph Murren as trustee of the James J Murren Spendthrift Trust

First Plaintiff

Daniel Lee

Second Plaintiff

Glenn Schaeffer

Defendant

Procedural Posture

Civil Commercial Dispute (misrepresentation, Negligence, Statutory Claims) / Pre Trial Applications: Strike Out Affirmative Defences and Counterclaims; Application for Non Party Discovery

Legal Issues

  1. 1 Whether pleaded defences and counterclaims for abuse of process disclose a reasonably arguable cause of action
  2. 2 Whether malicious prosecution is available as a defence and/or as a counterclaim at this stage
  3. 3 Whether particulars pleaded establish a predominant extraneous purpose required for abuse of process

Ratio Decidendi

Pleaded particulars did not demonstrate the requisite predominant extraneous purpose distinct from the relief sought and thus abuse of process defences and counterclaims disclosed no reasonably arguable cause of action and were struck out; malicious prosecution is not a proper defence and the counterclaim is premature because the tort requires prior resolution in the claimant's favour and therefore the malicious prosecution pleadings disclose no arguable cause of action; consequential non-party discovery application failed.

Court Disposition

Court struck out affirmative defences and counterclaims for abuse of process and malicious prosecution and dismissed non-party discovery application; costs reserved.

Orders

  • The affirmative defences of abuse of process are struck out.
  • The affirmative defences of malicious prosecution are struck out.