New Zealand Case Law: Decisions & Judgments

Topic

Tracing and constructive trust

Legal area

Court

29 Jul 2016

THE FISH MAN LIMITED (IN LIQUIDATION) v HADFIELD [2016] NZHC 1750

Citation

[2016] NZAR 1198
Court

High Court

The Fish Man's claim did not survive Mr Hadfield's automatic discharge because the misapplication of company funds to pay mortgage obligations did not amount to fraud or fraudulent breach of trust under s304(2)(a); equitable tracing/constructive trust was unavailable because the company funds were used to discharge debt (mortgage interest/principal) rather than to acquire or materially create the asset, and there was insufficient coordination to justify tracing or backward tracing into equitable interest in the property; accordingly the court dismissed the company's s119 proprietary claim and…
2 Mar 2015

H and H v S [2015] NZHC 310

Citation

[2015] NZHC 310
Court

High Court

The strike-out application was dismissed because defendants' illegality defences and related counterclaim pleaded matters that were at least arguable: title to funds may be governed by foreign law (lex situs for movables) and therefore illegality defences were not plainly untenable; allegations as to foreign revenue law did not amount to an attempt by a foreign state to enforce penalties; by suing their solicitor plaintiffs effectively put privileged communications in issue and defendants may rely on those communications to the extent necessary to establish defences; accordingly pleadings can…
5 Sept 2007

TAYLOR PRESTON LIMITED V ALGIE AND ANOR HC WN CIV 2007-485-1443

Citation

openlaw-e6b6c55b_6e8c_4fba_b986_bb0e80580e4c.pdf
Court

High Court

Applying the Peruvian Guano relevance test the Court held that documents concerning the defendants' bank accounts, sources of funds and assets relate to matters in question and particular discovery against the first and second defendants must be ordered; by contrast non-party discovery against Westpac, ASB and B J King & Associates was premature and dismissed with leave to renew after completion of general/particular discovery; orders must be sufficiently particular and may be subject to confidentiality conditions.
15 Jun 2007

CRUICKSHANK V MARTIN AND MANSFIELD HC AK CIV-2006-404-4519

Citation

openlaw-b6dbc1c8_8d8f_471f_9780_3e9aa3a2ae75.pdf
Court

High Court

The Court held the plaintiff's pleadings were sufficiently particular as required by the Rules and authority; requests for further particulars largely probed evidence or sought matters within defendants' knowledge and were therefore refused; an order to answer interrogatories was premature absent a statement of defence (r282 not appropriate at this stage); strike-out applications failed because the causes of action were not so clearly untenable that they could not possibly succeed.

New Zealand Case Law

THE FISH MAN LIMITED (IN LIQUIDATION) v HADFIELD [2016] NZHC 1750

H and H v S [2015] NZHC 310

TAYLOR PRESTON LIMITED V ALGIE AND ANOR HC WN CIV 2007-485-1443

CRUICKSHANK V MARTIN AND MANSFIELD HC AK CIV-2006-404-4519