JOHNSTON V SCHURR AND ANOR HC NWP CIV-2007-443-000289

JOHNSTON V SCHURR AND ANOR HC NWP CIV-2007-443-000289

The Court allowed the proposed particulars in paragraphs 23.3–23.7 as they merely particularise existing pleaded failures and are supported by the evidence on record, and allowed subparagraph 26.2 as it provides an alternative, lesser measure of loss rather than a new cause of action; the amendments do not cause...

Source-derived case information.

Citation
openlaw-0d789c8d_b331_4e63_a2fa_6dff7010f887.pdf
Parties
Plaintiff: Neil Stuart Johnston; First Defendant: Christopher Frederick Schurr; Second Defendant: Deem & Shearer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 November 2009
Procedural Posture
Civil Negligence (property Manager) With Matrimonial Property Loss of Chance Claim / Trial Concluded; Closing Submissions Pending; Application to Amend Statement of Claim
Outcome
Application to amend granted in part
Legal Topics
Loss of Chance, Amendment of Pleadings, Duties of Property Managers, Protection of Personal and Property Rights Act 1988, Property (relationships) Act 1976
Tort Negligence Family/matrimonial Property Civil Procedure Loss of Chance Amendment of Pleadings Duties of Property Managers Protection of Personal and Property Rights Act 1988 +1 more

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Summary, issues, holding and outcome

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Parties

Neil Stuart Johnston

Plaintiff

Christopher Frederick Schurr

First Defendant

Deem & Shearer

Second Defendant

Procedural Posture

Civil Negligence (property Manager) With Matrimonial Property Loss of Chance Claim / Trial Concluded; Closing Submissions Pending; Application to Amend Statement of Claim

Legal Issues

  1. 1 Whether to allow amendment adding particulars to paragraph 23 (23.3-23.7)
  2. 2 Whether proposed subparagraph 26.2 introduces a new cause of action or merely an alternative measure of loss
  3. 3 Application of loss-of-chance principles to a property manager's omission where plaintiff was incompetent to act

Ratio Decidendi

The Court allowed the proposed particulars in paragraphs 23.3–23.7 as they merely particularise existing pleaded failures and are supported by the evidence on record, and allowed subparagraph 26.2 as it provides an alternative, lesser measure of loss rather than a new cause of action; the amendments do not cause significant prejudice and are in the interests of justice, subject to allowing the first defendant time to address them in closing submissions.

Court Disposition

Application to amend granted in part

Orders

  • Amendments to paragraph 23 by adding subparagraphs 23.3 to 23.7 are allowed
  • Addition of subparagraph 26.2 is allowed as an alternative measure of loss