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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
CIV 2006-419-1066
BETWEEN BRIAN PATRICK GARMONSWAY
Plaintiff
AND RAGLAN DEVELOPMENTS LIMITED
First Defendant
AND ALLAN JOHN CRAFAR, FRANK
ROBERT CRAFAR AND ELIZABETH
JEAN CRAFAR
Second Defendants
Hearing: 16 February 2009
Appearances: I M Hutcheson for
plaintiff
M J Fisher and P M Hardie for second defendant
Judgment: 5 May 2009
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment
with the delivery time of 1.00
pm on Tuesday 5 May 2009
Solicitors/counsel :
P J Small, PO Box 41 212 Auckland for plaintiff
Blackman Spargo, PO Box 6206 Rotorua,
mark@blackmanspargo.co.nz
Jones Howden, PO Box 3440, Matamata, peter.hardie@joneshowden.co.nz
BP GARMONSWAY V RAGLAN DEVELOPMENTS
LIMITED AND ANOR HC HAM CIV 2006-419-1066
5 May 2009
[1] This is an application by the plaintiff for an order granting leave
for the
joinder of third and fourth defendants. The claims against the proposed defendants
are incorporated in a first amended statement
of claim filed on 7 November 2008.
[2] There are two other extant applications. The first is by the second defendant
and seeks
an order striking out the claim against that party in its entirety. The
second is by the plaintiff and seeks an order restoring the
first defendant to the
Register of Companies, the first defendant having previously been struck off. These
latter applications were
not argued before me. Counsel are agreed that the present
application should be determined first.
[3] Argument on the application
occupied the whole of a hearing day. By 5 pm
Mr Hutcheson had yet to be heard in reply. Accordingly, I granted leave for him to
file
written reply submissions, which he duly did. The submissions incorporated an
application for an order granting leave to the plaintiff
to file a further affidavit. The
affidavit itself accompanied the application.
[4] Counsel for the second defendant opposed
the granting of leave. The
affidavit places useful and relevant information before the Court, but it does not
materially
improve the plaintiff's position. In my view it is in the interests of justice
that leave be granted. I accordingly admit the plaintiff's
affidavit.
Factual background
[5] During 1999 the plaintiff and Mr Barrie Morgan developed a proposal for the
acquisition
and subsequent on-sale of certain residential land at Raglan. For that
purpose they agreed to form a partnership to be known as B
& B Developments
(B & B). Under that name they entered into an agreement to purchase the land from
the first defendant. The second
defendants were the directors and shareholders of the
first defendant. The plaintiff understands that Mr Morgan was a long time friend
of
the second defendants, and that there had been earlier business dealings between
them.
[6] The parties entered into an agreement
for sale and purchase dated
24 November 1999. It covered ten lots in an existing subdivision, ranging in area
between 661 square
metres and 7.5 hectares. The agreement provided for a purchase
price of $300,000, with a deposit of $2. The balance of the purchase
price was to be
paid in instalments of $40,000 plus GST upon the sale of each of lots 2 to 9 in the
subdivision. So beyond the deposit
of $2, no cash was payable by the purchasers to
the first defendant unless and until the lots were on-sold. The possession date was
10 May 2000.
[7] At the same time, B & B signed a memorandum of agreement which
provided for the purchase by them of all 1000 fully paid $1 shares in the first
defendant, for a price of $150,000. Although this agreement provided for a date of
settlement, no date appears to be specified. The
purchase price was to be left owing
interest free for a period of one year, but secured in the meantime by way of a
mortgage of shares.
[8] The plaintiff says that in reliance on these agreements he arranged to have a
bulldozer transported onto the site on 23
March 2000, and that he thereafter
reinstated certain existing drains and constructed new ones. He also undertook
extensive clearing
and contouring work in order to remove over-burden and create
building platforms, and engaged a surveyor.
[9] The agreement
for sale and purchase was not settled on the due date.
Mr Garmonsway says that he was given a variety of explanations for the delay.
Mr Allan Crafar explained in June that there were caveats on the title which would
need to be cleared first. Later, there was an
explanation that tax issues needed to be
tidied up with the Inland Revenue Department.
[10] But in 2001 the plaintiff discovered
that the first defendant had resold the
land to Forest Green Farm Ventures Ltd (Forest Green). This new agreement was
dated 23 March
2001, and provided for a purchase price of $450,000 exclusive of
GST, with a deposit of $2. Possession was to be available upon a
further payment of
$100,000, with the balance of $350,000 payable by 4 May 2001. There was no
equivalent share purchase agreement.
The plaintiff says that some of the lots were
rapidly on-sold by the new purchaser at a significant profit.
[11] The plaintiff
was advised of the new agreement by the solicitor then acting
for the B & B partnership, who was requested by the plaintiff to make
inquiries as to
the circumstances in which the partnership had been supplanted as purchaser. It
appears that little was achieved
in that respect. Indeed, nothing of significance
appears to have occurred until the plaintiff, acting without legal representation,
filed
this proceeding in August 2006.
The first statement of claim
[12] In his initial statement of claim the plaintiff pleaded
four causes of action:
a) Against the first defendant breach of the agreement for sale and
purchase
for which the plaintiff sought damages of $1.8 million;
b) Against the second defendants breach of the share purchase
agreement
for which the plaintiff again sought damages of $1.8 million;
c) Relief under the Frustrated
Contracts Act 1944 in respect of the
benefits (claimed to amount to $500,000) received by the first
defendant as the result of earth works and other improvements carried
out on the land by the plaintiff;
d) A claim for $500,000 for unjust enrichment said by the plaintiff to
support a constructive trust in his favour
in respect of the proceeds of
sale of the land.
The joinder application
[13] The application for joinder of
new defendants is supported by a first amended
statement of claim. The plaintiff is now legally represented. The new pleading has
been settled by counsel. Although tidied up to some degree, the initial four causes of
action against the first and second defendants
respectively are retained. There are
three new causes of action against the second defendants, in which the plaintiff
alleges interference
with contractual relations, knowing assistance in the breach of
the first defendant's fiduciary duty, and knowing receipt of a portion
of the balance
of the deposit paid by Forest Green.
[14] As the plaintiff's eighth cause of action he pleads against the proposed
third
defendant, Plateau Farms Ltd, that:
a) the second defendants were at all material times directors and
shareholders of Plateau Farms Ltd;
b) on or about 21 February 2002 Plateau Farms Ltd received by way of
deposit to its bank account at
Westpac Bank, the sum of $383,677;
c) this sum represented the payment of the balance of the purchase price
in respect of the first defendant's agreement to sell to Forest Green;
d) the third defendant had actual or
constructive knowledge that that sum
was received by the first defendant as a consequence of pleaded
breaches of fiduciary duty and/or that Plateau Farms Ltd, by its
directors, wilfully shut its eyes to the obvious
or recklessly failed to
make the inquiry that a reasonable and honest person would have
made in all
the circumstances.
[15] The plaintiff seeks a declaration of trust, judgment for $383,677, and a
tracing order in respect of
that sum.
[16] The ninth and tenth causes of action are pleaded against the proposed fourth
defendant, Mrs Jane Kay. It is claimed
that she acted in concert with Forest Green,
that she had actual or constructive knowledge of the plaintiff's interest arising from
its agreements for sale and purchase with the first and second defendants and of the
subsequent resale of the land to Forest Green,
that she was aware of the breaches of
fiduciary duty allegedly committed by Mr Morgan and the first and second
defendants, and that
by her actions she assisted in those breaches (ninth cause of
action), or alternatively received the proceeds of sale of the land
as a constructive
trustee for the plaintiff (tenth cause of action).
[17] In each case the plaintiff seeks against Mrs Kay damages
(presumably
equitable), of $1.8 million, together with such tracing order as may be necessary.
[18] Counsel for the second defendant
opposed the application for joinder upon
two primary grounds. The first is that the plaintiff lacks standing to sue. The causes
of
action pleaded against the proposed third and fourth defendants are vested in B &
B, and not the plaintiff alone. Mr Fisher argues
in consequence of Mr Morgan's
bankruptcy in 2003, the plaintiff ought to have sought the joinder of the Official
Assignee as a
plaintiff. In essence, the argument is that the plaintiff is unable to sue
in his own name for losses said to be sustained by the
partnership.
[19] The second primary ground is that the pleaded claims against the proposed
third and fourth defendants are
all statute barred.
Joinder principles
[20] Rule 4.56 (formerly r 97) provides:
Striking out and adding parties
(1) A Judge may, at any stage of a proceeding, order that--
(a) the name of a party be struck out
as a plaintiff or defendant
because the party was improperly or mistakenly joined; or
(b)
the name of a person be added as a plaintiff or defendant
because--
(i)
the person ought to have been joined; or
(ii) the person's presence before the court may be
necessary to adjudicate on and settle all questions
involved in the proceeding.
(2) An order does not require an application and may be made on terms
the court considers just.
(3) Despite subclause (1)(b), no person may be added as a plaintiff
without that person's consent.
[21]
The plaintiff relies upon r 4.56(1)(b)(ii). In general the Court adopts a liberal
approach to its jurisdiction under that sub-rule,
particularly where the applicant is the
plaintiff. Where jurisdiction exists, the tendency is to exercise it in favour of joinder:
Mainzeal Corporation Ltd v Contractors Bonding Ltd (1989) 2 PRNZ 47, Westfield
Freezing Co Ltd v Sayer & Co (NZ) Ltd [1972] NZLR 137 at 143, and NZI
Insurance Ltd v Hinton Hills & Coles Ltd [Joinder] (1996) 9 PRNZ 615.
[22] But in a clear case the Court will decline to make an order where the plaintiff
could not succeed against the proposed
defendant at trial: O'Sullivan v New Zealand
Ostriches Ltd (2000) 14 PRNZ 593. In particular, the Court will not add a party
where the effect of doing so would be to defeat the limitation rules: McComb v
Fleetwood
Motors Ltd [1967] NZLR 945 at 949, and Outfox Total Security (NZ) Ltd
v NZ Security Industry Assn Inc (1995) 8 PRNZ 477.
Limitation issues
a) Mr Fisher argues that the pleaded causes of action against the
proposed new
defendants cannot succeed because they are statute
barred. The plaintiff's claim against the proposed third defendant,
Plateau Farms, arises from the receipt by that company on
21 February 2002, of the sum of $383,677.
That sum is said to
represent the payment of the balance of the purchase price by Forest
Green. Plateau Farms and the first defendant had common directors
and shareholders.
[23] The plaintiff pleads
that the sum of $383,677 is held by Plateau Farms on a
constructive trust for the plaintiff.
[24] For present purposes I assume
that the plaintiff can establish that the first
defendant owed fiduciary duties to the plaintiff, in respect of the purchase moneys
received by it from Forest Green. The plaintiff relies on the principles discussed in
Bevin v Smith [1994] 3 NZLR 648, and in particular on the observations of Gault J
delivering the judgment of the Court at 664-665.
[25] The plaintiff's cause
of action against Plateau Farms arose on 21 February
2002, when that company received the relevant funds. The plaintiff's application
for
joinder was filed on 7 November 2008, more than six years after the accrual of the
cause of action. If the provisions of s 4
of the Limitation Act 1950 apply, the claim
against Plateau Farms is therefore statute barred. However, Mr Hutcheson submits
that
the relief sought by the plaintiff against the third defendant is wholly equitable
in character, and that there is no similar common
law remedy that would justify the
Court in applying the provisions of the Limitation Act by analogy: see the helpful
discussion by
Tipping J in Matai Industries Ltd v Jensen [1989] 1 NZLR 525 at 543-
544.
[26] Accordingly, Mr Hutcheson submits there is no applicable limitation period
in respect of the causes of action
that the plaintiff wishes to maintain against the
proposed third defendant.
[27] There are in my opinion two answers to that
contention. First, the claim
against Plateau Farms is sufficiently analogous to the common law action for
moneys had and received
to fall within the general principle that equity will follow
the common law for limitation purposes.
[28] A second and separate
point, is that the exception to ordinary limitation
principles is not as extensive as Mr Hutcheson submits it to be. The history
of
constructive trust claims in the limitation context was comprehensively discussed by
Millett LJ in Paragon Finance PLC v DB Thakerar
& Co [1998] EWCA Civ 1249; [1999] 1 All ER 400. It is
necessary to set out a lengthy passage from that judgment in order to illustrate the
applicable principles. At 408-410 Millett
LJ said:
Before 1890, when the Trustee Act 1888 came into operation, a claim
against an express trustee was never
barred by lapse of time. The Court of
Chancery had developed the rule that, in the absence of laches or
acquiescence,
such a trustee was accountable without limit of time. The rule
was confirmed by s 25(3) of the Supreme Court of Judicature
Act 1873,
which provided that no claim by a cestui que trust against his trustee for any
property held on an express trust,
or in respect of any breach of such trust,
should be held to be barred by any statute of limitation.
The explanation for the rule
was that the possession of an express trustee is
never in virtue of any right of his own but is taken from the first for and on
behalf
of the beneficiaries. His possession was consequently treated as the
possession of the beneficiaries, with the result that time did
not run in his
favour against them: see the classic judgment of Lord Redesdale in
Hovenden v Lord Annesley (1806) 2 Sch & Lef 607 at 633634.
The rule did not depend upon the nature of the trustee's appointment, and it
was applied to trustees de son tort and
to directors and other fiduciaries who,
though not strictly trustees, were in an analogous position and who abused
the trust and
confidence reposed in them to obtain their principal's property
for themselves. Such persons are properly described as constructive
trustees.
Regrettably, however, the expressions 'constructive trust' and 'constructive
trustee' have been used by equity lawyers
to describe two entirely different
situations. The first covers those cases already mentioned, where the
defendant, though not expressly
appointed as trustee, has assumed the duties
of a trustee by a lawful transaction which was independent of and preceded
the breach
of trust and is not impeached by the plaintiff. The second covers
those cases where the trust obligation arises as a direct consequence
of the
unlawful transaction which is impeached by the plaintiff.
A constructive trust arises by operation of law whenever the circumstances
are such that it would be unconscionable for the owner of property (usually
but not necessarily the legal estate) to assert his own
beneficial interest in the
property and deny the beneficial interest of another. In the first class of case,
however, the constructive
trustee really is a trustee. He does not receive the
trust property in his own right but by a transaction by which both parties
intend
to create a trust from the outset and which is not impugned by the
plaintiff. His possession of the property is coloured from the
first by the trust
and confidence by means of which he obtained it, and his subsequent
appropriation of the property to his own use
is a breach of that trust. Well-
known examples of such a constructive trust are McCormick v Grogan
[1869] UKHL 1; (1869) LR 4 HL 82 (a case of a secret trust) and Rochefoucald v Boustead
[1897] 1 Ch 196 (where the defendant agreed to buy property for the
plaintiff but the trust was imperfectly recorded). Pallant v Morgan [1952] 2
All ER 951, [1953] Ch 43 (where the defendant sought to keep for himself
property which the plaintiff trusted him to buy for both parties) is another. In
these cases the plaintiff does not impugn the transaction by which the
defendant obtained control of the property. He alleges that
the circumstances
in which the defendant obtained control make it unconscionable for him
thereafter to assert a beneficial interest
in the property.
The second class of case is different. It arises when the defendant is
implicated in a fraud. Equity has always
given relief against fraud by making
any person sufficiently implicated in the fraud accountable in equity. In such
a case he is
traditionally though I think unfortunately described as a
constructive trustee and said to be 'liable to account as constructive
trustee'.
Such a person is not in fact a trustee at all, even though he may be liable to
account as if he were. He never assumes
the position of a trustee, and if he
receives the trust property at all it is adversely to the plaintiff by an unlawful
transaction
which is impugned by the plaintiff. In such a case the expressions
'constructive trust' and 'constructive trustee' are misleading,
for there is no
trust and usually no possibility of a proprietary remedy; they are 'nothing
more than a formula for
equitable relief': Selangor United Rubber Estates
Ltd v Cradock (No 3) [1968] 2 All ER 1073 at 1097, [1968] 1 WLR 1555 at
1582 per Ungoed-Thomas J.
The constructive trust on which the plaintiffs seek to rely is of the second
kind.
The defendants were fiduciaries, and held the plaintiffs' money on a
resulting trust for them pending completion of the sub-purchase.
But the
plaintiffs cannot establish and do not rely upon a breach of this trust. They
allege that the money which was
obtained from them and which would
otherwise have been subject to it was obtained by fraud and they seek to
raise a
constructive trust in their own favour in its place.
The importance of the distinction between the two categories of constructive
trust lies in the application of the statutes of limitation. Before 1890
constructive trusts of the first kind were
treated in the same way as express
trusts and were often confusingly described as such; claims against the
trustee
were not barred by the passage of time. Constructive trusts of the
second kind however were treated differently. They were
not in reality trusts
at all, but merely a remedial mechanism by which equity gave relief for
fraud. The Court of Chancery,
which applied the statutes of limitation by
analogy, was not misled by its own terminology; it gave effect to the reality
of the situation by applying the statute to the fraud which gave rise to the
defendant's liability: see Soar v Ashwell
[1893] 2 QB 390 at 393, [18914]
All ER Rep 991 at 993 per Lord Esher MR:
'If the breach of the legal relation relied on ...
makes, in the view of
a Court of Equity, the defendant a trustee for the plaintiff, the Court
of Equity
treats the defendant as a trustee ... by construction, and the
trust is called a constructive trust; and against the
breach which by
construction creates the trust the Court of Equity allows Statutes of
Limitation to
be vouched.'
Lord Esher MR's reference to the breach of the legal relation shows that
while the first kind of constructive
trust was a creature of equity's exclusive
jurisdiction the second arose in the exercise of its concurrent jurisdiction.
That is why the statute was applied by analogy. For a fuller discussion of the
distinction between the two categories
of constructive trust, see Hovenden v
Lord Annesley (1806) 2 Sch & Lef 607 at 632633, Soar v Ashwell, Taylor v
Davies [1920] AC 636, Clarkson v Davies [1923] AC 100, Selangor United
Rubber Estates Ltd v Cradock (No 3) and Competitive Insurance Co Ltd v
Davies Investments Ltd [1975] 3 All ER 254, [1975] 1 WLR 1240.
[29] This analysis was recently adopted by Harrison J in Paki v Attorney-General
[2009] 1 NZLR 72 at [171].
[30] On the plaintiff's argument, this case falls within the second class identified
by Millett LJ. At the outset,
the first defendant was simply the plaintiff's vendor and
not a trustee at all. If the plaintiff's claims are correct, he may be
entitled to a type
of equitable relief to which the expression "constructive trust" is sometimes applied.
In such circumstances,
the provisions of the Limitation Act apply: Soar v Ashwell
[1893] 2 QB 390 at 393. The position of the proposed third defendant can be no
different.
[31] Mr Hutcheson submits that the plaintiff is nevertheless
entitled to the benefit
of the exception appearing in s 21(1)(b) of the Limitation Act. Section 21(1)
provides:
Limitation of actions in respect of trust property
(1) No period of limitation prescribed by this Act shall apply
to an
action by a beneficiary under a trust, being an action--
(a) In respect of any fraud or fraudulent
breach of trust to which
the trustee was a party or privy; or
(b) To recover from the
trustee trust property or the proceeds
thereof in the possession of the trustee, or previously
received by the trustee and converted to his use.
[32] Neither fraud nor fraudulent breach of trust is expressly
pleaded, but it is
argued that subs 1(b) is wide enough to cover the plaintiff's claim against the
proposed third defendant. I do
not accept that submission. In my view s 21(1)(b)
applies in cases where the defendant was a trustee from the outset. That is, he
originally took possession on trust for, or on behalf of, others: Taylor v Davies
[1920] AC 636 (PC) at 652, Paki at [170].
[33] This approach to the scope of s 21(1)(b) is consistent with the distinction
drawn by Millett
LJ between trustees properly so called, and those against whom
equitable compensation is claimed on broader grounds.
[34] Mr
Hutcheson further submits that the plaintiff ought to be accorded the
benefit of s 28 of the Limitation Act, which provides:
28 Postponement of limitation period in case of fraud or mistake
Where, in the case of any action for which a period
of limitation is
prescribed by this Act, either--
(a) The action is based upon the fraud of the defendant or
his agent or of
any person through whom he claims or his agent; or
(b) The right of action is concealed
by the fraud of any such person as
aforesaid; or
(c) The action is for relief from the consequences of a
mistake,--
the period of limitation shall not begin to run until the plaintiff has
discovered the fraud
or the mistake, as the case may be, or could
with reasonable diligence have discovered it:
Provided
that nothing in this section shall enable any action to be
brought to recover, or enforce any charge against, or set
aside any
transaction affecting, any property which--
(d) In the case of fraud, has been purchased for valuable
consideration
by a person who was not a party to the fraud and did not at the time
of the purchase know
or have reason to believe that any fraud had
been committed; or
(e) In the case of mistake, has been purchased
for valuable
consideration, subsequently to the transaction in which the mistake
was made, by a person
who did not know or have reason to believe
that the mistake had been made.
[35] It is difficult to see how s 28
might be applicable at all. The proceeding does
not allege fraud against any defendant, nor does the plaintiff claim that his right
of
action against the third and/or fourth defendants was concealed by the fraud of any
person. The only information as to why the
application to join the third and fourth
defendants has come so late is contained in the plaintiff's affidavit, filed after the
hearing,
and in respect of which I have granted leave over the objection of counsel
for the second defendant.
[36] The ordinary test is
whether a claimant could with reasonable diligence have
discovered the relevant fraud, the burden of proof being on him. He must
establish
that he could not have discovered the fraud without exceptional measures, which he
could not reasonably have been expected
to take: Paragon at 418, Amaltal Corp Ltd
v Maruha Corp [2007] 1 NZLR 608 at [155]-[161].
[37] The plaintiff's evidence does not begin to comply with that test. He accepts
that he was told on 9 March
2001 by his former solicitor, Mr Harris, that:
... the second defendants, Mr Morgan and Mr Andrew Kay, had put together
a fresh agreement with Mr Morgan's company, Forest Green Farm Ventures
Ltd.
[38] The plaintiff says he asked Mr
Harris to make some inquiries, but thereafter
he parted company with Mr Harris, was involved in a serious motor vehicle accident
in April 2003, later tried to obtain documentary evidence to support the proceeding,
and eventually filed his claim in August 2006
in person. Mr Harris has subsequently
been struck off the Roll of Legal Practitioners, and there seems to have been some
difficulty
in obtaining access to the plaintiff's file.
[39] But on the plaintiff's own evidence he knew in March 2001 that the first
defendant
had resold the property to another purchaser. On his case that was a plain
breach of the contractual obligations owed by the first
defendant to B & B. It was
incumbent upon him to make at least basic inquiries of the existing defendants and
Mr Morgan. Had he done
so, it is highly likely that the alleged role of the proposed
third and fourth defendants would have come to light. I am satisfied
that s 28 of the
Limitation Act does not assist the plaintiff and that, for the reasons I have given, his
claims against Plateau
Farms are statute-barred.
[40] I turn to the claims against the proposed fourth defendant Mrs Kay. She is
the wife of Mr Andrew
Kay who at all material times had a business association with
Mr Morgan. They appear to have each been involved in the promotion
of Forest
Green. Mr Kay was later adjudicated bankrupt. Mrs Kay was the purchaser of
certain lots from Forest Green that were later
on-sold at a considerable profit.
[41] The plaintiff pleads two causes of action against her. In the ninth cause of
action he
alleges that she acted in concert with Forest Green with respect to the
purchase and subsequent resale of the land, that she had
actual or constructive
knowledge, that the purchase and subsequent resale was in breach of the plaintiff's
interests, and that by
her actions she dishonestly assisted Mr Morgan and the existing
defendants in their breaches of fiduciary duties to the plaintiff.
To the extent that the
proposed fourth defendant benefited from her dealings with the land, the plaintiff
seeks the sum of $1.8 million
(presumably by way of equitable compensation) and/or
tracing orders in respect of any proceeds of sale of the land received by her.
[42] The tenth cause of action simply pleads as a further particular that Mrs Kay
received the proceeds of sale of the land as
a constructive trustee for the plaintiff. It
does not appear to add anything material to the ninth cause of action.
[43] The
evidence is that Forest Green sold two lots to Mrs Kay on 3 April 2001
for a total of $10,000. She resold them to third parties for
$100,000 and $200,000
respectively in June 2001. There was also evidence of the sale of further lots direct
by Forest Green to other
third parties on 22 February 2002. All of these sales
occurred more than six years prior to the filing of the plaintiff's present
application
for joinder of the fourth defendant. On the material before the Court, the causes of
action pleaded against her arose
no later than February 2002.
[44] In my view, any claim against the fourth defendant is statute barred for the
same reasons that
apply to the third defendant. In the light of that finding it is
unnecessary for me to consider Mr Fisher's alternative argument
that the plaintiff
lacks status to sue except in respect of causes of action based upon contract. That
argument appears, however,
to be relevant to the second defendant's strike out
application, which remains for determination.
Disposal
[45] For the foregoing
reasons, the plaintiff's application for an order joining the
proposed third and fourth defendants is dismissed. The second defendant is entitled
to costs. Counsel may file memoranda if they
are unable to agree.
[46] The second defendant's strike out application and the plaintiff's application
to restore the first
defendant to the Register of Companies stand adjourned. The
Registrar is asked to refer the file to Faire AJ, following delivery
of this judgment.
C J Allan J
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URL: http://www.nzlii.org/nz/cases/NZHC/2009/488.html