Murren & James J Murren Spendthrift Trust v Schaeffer [2015] NZHC 2759

Murren & James J Murren Spendthrift Trust v Schaeffer [2015] NZHC 2759

No prima facie arbitration agreement bound the defendant because the 2002 draft was not executed as an agreement and the 2006 agreement did not bind the defendant; the plaintiffs' pleaded causes of action are tort and statutory claims outside the scope of the arbitration clauses; balancing connecting factors and applicable law, New Zealand is an appropriate forum; accordingly the defendant's appearance is set aside and the application to dismiss or stay is dismissed.

Citation
[2015] NZHC 2759
Parties
First Plaintiff: James Joseph Murren; First Plaintiff (trust): James J Murren Spendthrift Trust; Second Plaintiff: Daniel Lee; Defendant: Glenn Schaeffer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 November 2015
Procedural Posture
Civil – Claims in Tort, Contract and Consumer Law / Pre Trial Jurisdictional Stage: Application to Set Aside Appearance and Application to Dismiss/stay for Forum Non Conveniens
Outcome
Appearance set aside; application to dismiss or stay dismissed; defendant to file statement of defence; costs and disbursements awarded to plaintiffs
Legal Topics
Misrepresentation, Deceit, Fraudulent Misrepresentation, Duty of Care, Forum Conveniens, Jurisdiction, Stay of Proceedings, Fair Trading Act 1986, Nevada Deceptive Trade Practices Act
Contract Tort Arbitration Conflict of Laws Consumer Protection Misrepresentation Deceit Fraudulent Misrepresentation +6 more

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Parties

James Joseph Murren

First Plaintiff

James J Murren Spendthrift Trust

First Plaintiff (trust)

Daniel Lee

Second Plaintiff

Glenn Schaeffer

Defendant

Procedural Posture

Civil – Claims in Tort, Contract and Consumer Law / Pre Trial Jurisdictional Stage: Application to Set Aside Appearance and Application to Dismiss/stay for Forum Non Conveniens

Legal Issues

  1. 1 Whether a binding arbitration agreement exists and applies to the defendant
  2. 2 Whether the plaintiffs' causes of action fall within the arbitration clause
  3. 3 Whether the New Zealand court has jurisdiction and is the forum conveniens

Ratio Decidendi

No prima facie arbitration agreement bound the defendant because the 2002 draft was not executed as an agreement and the 2006 agreement did not bind the defendant; the plaintiffs' pleaded causes of action are tort and statutory claims outside the scope of the arbitration clauses; balancing connecting factors and applicable law, New Zealand is an appropriate forum; accordingly the defendant's appearance is set aside and the application to dismiss or stay is dismissed.

Court Disposition

Appearance set aside; application to dismiss or stay dismissed; defendant to file statement of defence; costs and disbursements awarded to plaintiffs

Orders

  • Appearance by defendant filed under protest to jurisdiction set aside under r 5.49(6)(a)
  • Application by defendant to dismiss or stay proceeding dismissed