RENIE GIBSON FAMILY TRUSTEE (2016) LIMITED trustee of the RENIE GIBSON FAMILY TRUST v WESTPAC BANKING CORPORATION [2018] NZHC 974

RENIE GIBSON FAMILY TRUSTEE (2016) LIMITED trustee of the RENIE GIBSON FAMILY TRUST v WESTPAC BANKING CORPORATION [2018] NZHC 974

The Court refused to strike out or grant summary judgment because limitation and discovery issues, and the possibility of s28(b) postponement for concealment, raised contested factual questions unsuitable for summary disposal; the Fair Trading Act claim raised factual issues of discovery; negligent misstatement and duty of care claims were partly within time for losses occurring after specified dates and could be extended under s28(b) on the pleaded facts; contractual misrepresentation claims were time-barred except for inducement to execute the guarantee (a deed) which falls within 12-year limitation; breach of fiduciary duty was not analogously barred and survived to trial.

Citation
[2018] NZHC 974
Parties
First Plaintiff: Renie Gibson Family Trustee (2016) Limited trustee of the Renie Gibson Family Trust; Second Plaintiff: Babylon Farms Limited; Third Plaintiff: Renie Jean Gibson; First Defendant: Westpac Banking Corporation; Second Defendant: Westpac New Zealand Limited; First Third Party: Hammonds Law; Second Third Party: Hammonds Trustees Limited; Third Third Party: Renie Jean Gibson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 May 2018
Procedural Posture
Civil Litigation – Contractual, Tort and Statutory Claims Against Banks / Interlocutory Hearing on Summary Judgment and Strike Out Applications (directions to Trial)
Outcome
Defendants' applications for summary judgment and strike out dismissed; limitation defences and merits to be determined at trial (case to proceed)
Legal Topics
Interest Rate Swaps, Misrepresentation (negligent and Contractual), Negligent Misstatement, Fiduciary Duty, Fair Trading Act S9 & S43 a Limitation, Limitation Act 1950 S4 & S28(b), Contract Guarantees (deeds), Summary Judgment and Strike Out
Contract Law Tort (negligence) Equity (fiduciary Law) Consumer Protection (fair Trading Act) Banking and Financial Services Law Limitation Law Interest Rate Swaps Misrepresentation (negligent and Contractual) +6 more

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Parties

Renie Gibson Family Trustee (2016) Limited trustee of the Renie Gibson Family Trust

First Plaintiff

Babylon Farms Limited

Second Plaintiff

Renie Jean Gibson

Third Plaintiff

Westpac Banking Corporation

First Defendant

Westpac New Zealand Limited

Second Defendant

Hammonds Law

First Third Party

Hammonds Trustees Limited

Second Third Party

Renie Jean Gibson

Third Third Party

Procedural Posture

Civil Litigation – Contractual, Tort and Statutory Claims Against Banks / Interlocutory Hearing on Summary Judgment and Strike Out Applications (directions to Trial)

Legal Issues

  1. 1 Whether the pleaded causes of action are statute-barred under Limitation Act 1950 and Fair Trading Act s43A
  2. 2 Whether the amended pleadings introduced fresh causes of action
  3. 3 Whether s28(b) Limitation Act 1950 (postponement for concealment/fraud) applies to extend time

Ratio Decidendi

The Court refused to strike out or grant summary judgment because limitation and discovery issues, and the possibility of s28(b) postponement for concealment, raised contested factual questions unsuitable for summary disposal; the Fair Trading Act claim raised factual issues of discovery; negligent misstatement and duty of care claims were partly within time for losses occurring after specified dates and could be extended under s28(b) on the pleaded facts; contractual misrepresentation claims were time-barred except for inducement to execute the guarantee (a deed) which falls within 12-year limitation; breach of fiduciary duty was not analogously barred and survived to trial.

Court Disposition

Defendants' applications for summary judgment and strike out dismissed; limitation defences and merits to be determined at trial (case to proceed)

Orders

  • Defendants' summary judgment application dismissed
  • Defendants' strike out application dismissed