SWINDLE & Ors v WITHERS & ANOR [2014] NZHC 578

SWINDLE & Ors v WITHERS & ANOR [2014] NZHC 578

The Court held that causes of action under the Fair Trading Act are not assignable and accordingly struck out the plaintiffs' claims brought as assignees of Orakei's FTA causes (fourth and fifth causes). The Court refused to strike out Orakei's own FTA claim or the negligent misstatement claims (third, sixth, seventh, eighth and related causes) because material factual disputes (including discovery date and accrual of loss) and deficiencies in particularity could not be resolved at strike‑out and were matters for trial or amendment.

Citation
[2014] NZHC 578
Parties
First Plaintiff (trustee of Swindle Family Trust): Burvie Edward Swindle; First Plaintiff (trustee of Swindle Family Trust): Carolie Ann Terpening Swindle; Second Plaintiff: Aorangi Forests Limited; Third Plaintiff: Orakei; Defendant: M D Withers; Third Party (insurer): Zurich Australian Insurance Limited trading as Zurich New Zealand
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 March 2014
Procedural Posture
Civil Statutory and Tort Claims (fair Trading Act; Negligent Misstatement; Assignment Issues) / High Court Judgment on Third‑party Strike‑out Application
Outcome
Partial grant in favour of third party: fourth and fifth causes of action struck out; all other strike‑out applications dismissed
Legal Topics
Assignability of Statutory Causes of Action, Accrual and Discovery for Limitation, Pleading Sufficiency for Negligent Misstatement, Equitable Assignment of Future Choses, Statutory Interpretation and Harmonisation With Australian Law, Strike‑out Standard
Fair Trading Act Tort Negligent Misstatement Assignment and Property Law Civil Procedure Strike Out Limitation Law Equity Assignability of Statutory Causes of Action Accrual and Discovery for Limitation +4 more

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Parties

Burvie Edward Swindle

First Plaintiff (trustee of Swindle Family Trust)

Carolie Ann Terpening Swindle

First Plaintiff (trustee of Swindle Family Trust)

Aorangi Forests Limited

Second Plaintiff

Orakei

Third Plaintiff

M D Withers

Defendant

Zurich Australian Insurance Limited trading as Zurich New Zealand

Third Party (insurer)

Procedural Posture

Civil Statutory and Tort Claims (fair Trading Act; Negligent Misstatement; Assignment Issues) / High Court Judgment on Third‑party Strike‑out Application

Legal Issues

  1. 1 Whether Fair Trading Act causes of action are assignable
  2. 2 Whether plaintiffs discovered loss such that FTA limitation period began to run
  3. 3 Whether assignments made pre‑default transferred enforceable causes of action

Ratio Decidendi

The Court held that causes of action under the Fair Trading Act are not assignable and accordingly struck out the plaintiffs' claims brought as assignees of Orakei's FTA causes (fourth and fifth causes). The Court refused to strike out Orakei's own FTA claim or the negligent misstatement claims (third, sixth, seventh, eighth and related causes) because material factual disputes (including discovery date and accrual of loss) and deficiencies in particularity could not be resolved at strike‑out and were matters for trial or amendment.

Court Disposition

Partial grant in favour of third party: fourth and fifth causes of action struck out; all other strike‑out applications dismissed

Orders

  • Fourth cause of action (Swindles as assignees of Orakei's Fair Trading Act claim) struck out
  • Fifth cause of action (Aorangi as assignee of Orakei's Fair Trading Act claim) struck out