MURREN & ANOR v SCHAEFFER [2018] NZHC 2320

MURREN & ANOR v SCHAEFFER [2018] NZHC 2320

The threats alleged to have been made at mediation were not shown to be relevant to the real controversy in the substantive proceedings, did not justify the extreme remedies of striking-out or permanently staying the claims, and the Court will not admit or rely on an undisclosed confidential affidavit in civil...

Source-derived case information.

Citation
[2018] NZHC 2320
Parties
Plaintiff/respondent: James Joseph Murren (as trustee of the James J. Murren Spendthrift Trust); Plaintiff/respondent: Daniel Lee; Defendant/applicant: Glenn Schaeffer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 September 2018
Procedural Posture
Civil (misrepresentation, Deceit, Negligent Misstatement; Fair Trading Act; Nevada Deceptive Trade Practices Act) / Interlocutory (application to Strike Out/permanently Stay; Applications Re Cross Examination and Subpoenas)
Outcome
Defendant's application to strike-out or permanently stay dismissed; leave granted to file interlocutory application; confidential affidavit excluded; subpoenas against plaintiffs' counsel prohibited; costs reserved.
Legal Topics
Strike Out, Permanent Stay, Freezing Orders, Mediation Threats, Open Justice, Secret Affidavit, Subpoena Against Counsel, Misrepresentation, Deceit, Negligent Misstatement, Fair Trading Act 1986
Civil Procedure Tort Contract Evidence Criminal Law (allegations) Strike Out Permanent Stay Freezing Orders +8 more

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Parties

James Joseph Murren (as trustee of the James J. Murren Spendthrift Trust)

Plaintiff/respondent

Daniel Lee

Plaintiff/respondent

Glenn Schaeffer

Defendant/applicant

Procedural Posture

Civil (misrepresentation, Deceit, Negligent Misstatement; Fair Trading Act; Nevada Deceptive Trade Practices Act) / Interlocutory (application to Strike Out/permanently Stay; Applications Re Cross Examination and Subpoenas)

Legal Issues

  1. 1 Whether alleged threats made at mediation justified striking out or permanently staying the substantive proceedings
  2. 2 Whether a confidential/undisclosed affidavit may be admitted in civil proceedings
  3. 3 Whether the alleged threats are relevant to the 'real controversy' in the substantive proceedings

Ratio Decidendi

The threats alleged to have been made at mediation were not shown to be relevant to the real controversy in the substantive proceedings, did not justify the extreme remedies of striking-out or permanently staying the claims, and the Court will not admit or rely on an undisclosed confidential affidavit in civil proceedings; subpoenas against the plaintiffs' counsel are prohibited as unjustified and an abuse of process.

Court Disposition

Defendant's application to strike-out or permanently stay dismissed; leave granted to file interlocutory application; confidential affidavit excluded; subpoenas against plaintiffs' counsel prohibited; costs reserved.

Orders

  • Defendant is granted leave under HCR 7.7 to file the application dated 29 August 2018.
  • The application to strike-out or permanently stay the substantive proceedings is dismissed.