EBS v CAS [2014] NZHC 2929 ]

EBS v CAS [2014] NZHC 2929 ]

The Court found the elements for issue estoppel and for the application of Henderson v Henderson were made out in respect of the newly pleaded misrepresentation/deceit causes of action but, weighing overall justice and the tenability of the claims, declined to grant summary judgment or to strike out or stay the causes of action; the applications were dismissed and costs reserved pending substantive determination.

Citation
[2014] NZHC 2929
Parties
Appellant / Plaintiff / Applicant: EBS; Respondent / Defendant / First Respondent: CAS; Second Respondent / Second Defendant / Trustee: Mical Shane Jervis Treadwell; Second Respondent / Trustee: James Peter Woods; Second Respondent (trust): CA & EBS Family Trust; Third Respondent / Defendant / Trustee: Bryan George Pocock; Third Respondent / Trustee: Treadwells Trustees No 2 Limited; Third Respondent (trust): CAS Family Trust; Fourth Respondent (trust): CAS Commercial Trust; Fifth Respondent / Defendant / Accountant: Pocock Hudson Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 November 2014
Procedural Posture
Property (relationships) Act 1976; Family Proceedings Act 1980; Trustee Act 1956; Contractual Remedies Act 1979; Fair Trading Act 1986 / Application for Defendant's Summary Judgment and Alternatively Strike Out or Stay of Two New Causes of Action (pre Trial Interlocutory Application)
Outcome
Applications for strike out, stay and defendant's summary judgment dismissed; costs reserved
Legal Topics
Misrepresentation, Non Disclosure, Res Judicata, Issue Estoppel, Henderson V Henderson (abuse of Process), Summary Judgment, Strike Out, Relationship Property, Mediation, Costs
Family Law Property Law Trusts Law Contract Law Civil Procedure Misrepresentation Non Disclosure Res Judicata +7 more

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Parties

EBS

Appellant / Plaintiff / Applicant

CAS

Respondent / Defendant / First Respondent

Mical Shane Jervis Treadwell

Second Respondent / Second Defendant / Trustee

James Peter Woods

Second Respondent / Trustee

CA & EBS Family Trust

Second Respondent (trust)

Bryan George Pocock

Third Respondent / Defendant / Trustee

Treadwells Trustees No 2 Limited

Third Respondent / Trustee

CAS Family Trust

Third Respondent (trust)

CAS Commercial Trust

Fourth Respondent (trust)

Pocock Hudson Limited

Fifth Respondent / Defendant / Accountant

Procedural Posture

Property (relationships) Act 1976; Family Proceedings Act 1980; Trustee Act 1956; Contractual Remedies Act 1979; Fair Trading Act 1986 / Application for Defendant's Summary Judgment and Alternatively Strike Out or Stay of Two New Causes of Action (pre Trial Interlocutory Application)

Legal Issues

  1. 1 Whether two newly pleaded causes of action (misrepresentation and deceit) are barred by res judicata or issue estoppel
  2. 2 Whether the rule in Henderson v Henderson (abuse of process) bars the new causes of action
  3. 3 Whether the new causes of action are tenable on the evidence such that summary judgment or strike out is appropriate

Ratio Decidendi

The Court found the elements for issue estoppel and for the application of Henderson v Henderson were made out in respect of the newly pleaded misrepresentation/deceit causes of action but, weighing overall justice and the tenability of the claims, declined to grant summary judgment or to strike out or stay the causes of action; the applications were dismissed and costs reserved pending substantive determination.

Court Disposition

Applications for strike out, stay and defendant's summary judgment dismissed; costs reserved

Orders

  • Applications for strike out, stay and defendant's summary judgment dismissed
  • Costs reserved pending substantive determination of the pleaded causes of action