STOKES v INSIGHT LEGAL TRUSTEE CO LTD & OR [2013] NZHC 2745

STOKES v INSIGHT LEGAL TRUSTEE CO LTD & OR [2013] NZHC 2745

Associate Judge Doogue erred by permitting the defendants to amend their defence to plead failure to mitigate because that new defence fell outside the scope of the issues remitted by the Court of Appeal and beyond the limited leave reserved; the High Court on remittal is confined to issues and defences expressly permitted and cannot be used to reopen matters finally decided.

Citation
[2013] NZHC 2745
Parties
Plaintiff (trustee, Stokes Family Trust): B J Stokes; Plaintiff (trustee, Stokes Family Trust): A M Stokes; Plaintiff (trustee, Stokes Family Trust): O N Williams; First Defendant: Insight Legal Trustee Company Limited; First Defendant (trustee, R M Colebrook Family Trust): G K Heenan; Second Defendant: E M Heenan (formerly Colebrook)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 October 2013
Procedural Posture
Civil Litigation Remitted From Court of Appeal (trusts and Contract) / Interlocutory Review Pre Trial (application for Review of Associate Judge's Leave to Amend Pleadings)
Outcome
Application for review allowed; Associate Judge's decision permitting the mitigation pleading set aside
Legal Topics
Remittal Scope, Amendment of Pleadings, Mitigation of Loss, Functus Officio, Leave to Amend
Civil Procedure Trusts Equity Contract Law Remittal Scope Amendment of Pleadings Mitigation of Loss Functus Officio +1 more

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Parties

B J Stokes

Plaintiff (trustee, Stokes Family Trust)

A M Stokes

Plaintiff (trustee, Stokes Family Trust)

O N Williams

Plaintiff (trustee, Stokes Family Trust)

Insight Legal Trustee Company Limited

First Defendant

G K Heenan

First Defendant (trustee, R M Colebrook Family Trust)

E M Heenan (formerly Colebrook)

Second Defendant

Procedural Posture

Civil Litigation Remitted From Court of Appeal (trusts and Contract) / Interlocutory Review Pre Trial (application for Review of Associate Judge's Leave to Amend Pleadings)

Legal Issues

  1. 1 Whether Associate Judge had jurisdiction under the Court of Appeal remittal to permit a new mitigation defence
  2. 2 Whether a mitigation defence is within the scope of the leave reserved by the Court of Appeal
  3. 3 Whether the functus officio principle limits the High Court to issues expressly remitted

Ratio Decidendi

Associate Judge Doogue erred by permitting the defendants to amend their defence to plead failure to mitigate because that new defence fell outside the scope of the issues remitted by the Court of Appeal and beyond the limited leave reserved; the High Court on remittal is confined to issues and defences expressly permitted and cannot be used to reopen matters finally decided.

Court Disposition

Application for review allowed; Associate Judge's decision permitting the mitigation pleading set aside

Orders

  • Associate Judge Doogue's 18 September 2013 minute granting leave to amend the statement of defence to plead failure to mitigate is set aside
  • Defendants are limited to the issues and affirmative defences expressly permitted by the Court of Appeal remittal; mitigation defence is not permitted on remittal