P C TARR v D J SUTCLIFFE AND T SUTCLIFFE AND B MATSON AS PARTNERS OF FROST & SUTCLIFFE LAWYERS [2017] NZHC 547

P C TARR v D J SUTCLIFFE AND T SUTCLIFFE AND B MATSON AS PARTNERS OF FROST & SUTCLIFFE LAWYERS [2017] NZHC 547

The application for summary judgment and strike out was dismissed because the defendants did not establish that the plaintiff's causes of action could not possibly succeed; material factual disputes remained and prior Family Court and High Court findings did not render the present causes of action conclusively untenable. However, given the long delay, uncertainty as to whether impecuniosity was caused by the alleged loss and the risk of prejudice, security for costs of NZD 20,000 was ordered and the proceeding stayed pending payment. Costs were allocated to reflect the unsuccessful parts of each party's applications.

Citation
[2017] NZHC 547
Parties
Plaintiff: Philip Claude Tarr; First Defendant: Douglas John Sutcliffe; Second Defendant: Terence Sutcliffe and Braden Matson as partners of Frost & Sutcliffe Lawyers
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 March 2017
Procedural Posture
Civil Proceeding (fiduciary Duty/undue Influence/relationship Property) / Application for Summary Judgment/strike Out and Security for Costs
Outcome
Application for summary judgment/strike out dismissed; application for security for costs granted; proceeding stayed pending payment of security; costs orders made
Legal Topics
Summary Judgment, Strike Out, Laches, Issue Estoppel, Abuse of Process, Security for Costs, Relationship Property, Trusts, Share Transfer
Equity Fiduciary Duty Family Law Civil Procedure Costs Summary Judgment Strike Out Laches +6 more

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Parties

Philip Claude Tarr

Plaintiff

Douglas John Sutcliffe

First Defendant

Terence Sutcliffe and Braden Matson as partners of Frost & Sutcliffe Lawyers

Second Defendant

Procedural Posture

Civil Proceeding (fiduciary Duty/undue Influence/relationship Property) / Application for Summary Judgment/strike Out and Security for Costs

Legal Issues

  1. 1 Whether claims of undue influence and breach of fiduciary duty can be struck out or summarily disposed given prior Family Court and High Court findings
  2. 2 Whether delay and loss of contemporaneous records (laches) so prejudiced defendants that striking out or summary judgment is appropriate
  3. 3 Whether issue estoppel or abuse of process prevents relitigation of matters decided in the Family Court and on appeal

Ratio Decidendi

The application for summary judgment and strike out was dismissed because the defendants did not establish that the plaintiff's causes of action could not possibly succeed; material factual disputes remained and prior Family Court and High Court findings did not render the present causes of action conclusively untenable. However, given the long delay, uncertainty as to whether impecuniosity was caused by the alleged loss and the risk of prejudice, security for costs of NZD 20,000 was ordered and the proceeding stayed pending payment. Costs were allocated to reflect the unsuccessful parts of each party's applications.

Court Disposition

Application for summary judgment/strike out dismissed; application for security for costs granted; proceeding stayed pending payment of security; costs orders made

Orders

  • Application for summary judgment/strike out dismissed
  • Application for security for costs granted