Rosenberg v AMP Services (NZ) Limited [2018] NZHC 1929 (31 July 2018)

Last Updated: 10 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000767 [2018] NZHC 1929

BETWEEN	REBECCA ROSENBERG Plaintiff/Applicant
AND	AMP SERVICES (NZ) LIMITED Defendant/Respondent

Hearing:	22 June 2018
Appearances:	No appearance by or for the Plaintiff/Applicant J A Knight and S Kettani for the Defendant/Respondent
Judgment:	31 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 31 July 2018 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

.............................................................................. Registrar/Deputy Registrar

Solicitors:

Chapman Tripp, Wellington

Party:

R Rosenberg

REBECCA ROSENBERG v AMP SERVICES (NZ) LIMITED [2018] NZHC 1929 [31 July 2018]

[1] This is an application to review a decision by Associate Judge Osborne on 13 November 2017, to strike out a claim filed by Ms Rosenberg against AMP on 15 April 2016.¹ The key issues relate to whether Ms Rosenberg has standing and whether a limitation period applies.

Background

[2] The essence of Ms Rosenberg’s claim before the Associate Judge was that AMP wrongly failed to pay a $105,000 life insurance benefit following the death of her father, Allen Rosenberg, on 18 April 2006. The life insurance policy at issue is an AXA Risk Protection Plan – Life Insurance Component (the policy) which was owned by Mr Rosenberg. He was the life insured.

[3] The argument before Associate Judge Osborne proceeded on the basis that Mr Rosenberg had not left a will, and Ms Rosenberg would be a beneficiary on an intestacy.

[4] AMP’s substantive defence to the claim is that the policy ended before Mr Rosenberg’s death, as a result of non-payment.

[5] But putting that to one side, AMP applied to strike out on the grounds that, first, Ms Rosenberg did not have standing to bring the proceeding, and second, her claim was time-barred. To elaborate, AMP submitted:

(a) Ms Rosenberg did not have standing because she was not a party to or beneficiary of the policy, nor was she an executor or administrator of the estate of Mr Rosenberg (who was the owner and beneficiary of the policy); and/or

(b) The claim was time-barred by s 4(1)(a) of the Limitation Act 1950. The alleged cause of action, being a claim in contract under Mr Rosenberg’s life insurance policy, accrued when Mr Rosenberg died on or around

¹ Rosenberg v AMP Services (NZ) Limited [2017] NZHC 2232.

18 April 2006 (nearly 10 years before this proceeding was filed on 15 April 2016), meaning the proceeding was time-barred by May 2012.

[6] Associate Judge Osborne excused Ms Rosenberg’s appearance at the hearing before him, but she filed extensive written submissions, including after the hearing was completed.

[7] By judgment dated 13 November 2017, Associate Judge Osborne struck out the plaintiff’s proceeding on the ground that Ms Rosenberg did not have standing to bring it. As a result, he considered it was unnecessary to determine whether the claim was also time-barred, although he said it appeared likely that it was.

[8] On 10 December 2017, Ms Rosenberg filed this application for review.

Subsequent developments – effective repleading

[9] Since the hearing before Associate Judge Osborne, Ms Rosenberg filed a memorandum dated 21 February 2018, advising that she has now found a will for her father, which appoints her mother as executor, and gives her father’s property to her mother.

[10] Ms Rosenberg attached a copy of the will on which she relies to an email to the Court dated 22 February 2018.

[11] Ms Rosenberg then further advised, in a memorandum dated 12 April 2018, that probate was granted to her mother on 12 April 2018 and she attached a copy of the grant of probate to an email to the Court.

[12] Ms Rosenberg’s claim has not been formally amended. However, there is no reason to question the new documents. That is clearly the basis on which Ms Rosenberg seeks now to pursue her case and this review. I consider I must deal with the application for review on the new factual basis. It would be nonsensical not to do so. I considered re-addressing the arguments also on the basis of the original facts, but have decided that is pointless.
[13] Ms Rosenberg’s case now is therefore broadly that her mother, as sole beneficiary under the will, has inherited her father’s interest under the life insurance policy; her mother (before the will was found) had assigned her share of the life insurance proceeds to Ms Rosenberg, and that makes Ms Rosenberg the owner of the life insurance proceeds.

Preliminary Application to strike out for non-appearance

[14] Before I turn to the substance of this review application, I record that by memorandum dated 15 June 2018, AMP made an additional application to strike out this proceeding on the grounds of Ms Rosenberg’s failure to appear, or anticipated failure to appear on this review.

[15] I declined AMP’s application, but make a brief record of it here.

[16] Ms Rosenberg resides in Israel and has conducted this proceeding throughout from outside the jurisdiction. As noted earlier, she did not appear at the hearing before Associate Judge Osborne. He dealt with the application on the papers.

[17] After Ms Rosenberg filed the present review application, by Minute dated 8 February 2018, Downs J directed that if Ms Rosenberg wishes to pursue the review application, she “must” either appear or instruct a lawyer. He said: “It is not open to her to do neither and prosecute the application from outside of the jurisdiction (or within it).”

[18] By memorandum dated 18 May 2018, AMP sought the Court’s assistance to obtain certainty around Ms Rosenberg’s intention to appear or instruct counsel to appear at the hearing.

[19] As a result, Lang J directed that Ms Rosenberg was to advise the Court by 25 May 2018 as to whether she proposed to attend the hearing or to instruct counsel to appear.
[20] The plaintiff in response stated that she was “unable to appear in person”, could not afford legal representation and she requested that a litigation representative be appointed.

[21] Lang J, by Minute dated 24 May 2018, declined to grant Ms Rosenberg an adjournment or attendance by teleconference and indicated that the other suggestions in her memorandum dated 23 May 2018, including appointment of a litigation representative, would need to be advanced by way of formal application. He recorded that it was clear that the plaintiff would not be able to travel to New Zealand for the trial, and that the only alternative would be for her to arrange for counsel to appear on her behalf.

[22] Ms Rosenberg, by memorandum dated 6 June 2018, again requested an adjournment of the 22 June 2018 hearing. This application was declined by Lang J by Minute dated 12 June 2018. He suggested (presumably as a concession to Ms Rosenberg, given Downs J’s ruling) that the hearing could be dealt with on the papers, with Ms Rosenberg’s submissions to be filed by 19 June 2018.

[23] Ms Rosenberg, by email dated 13 June 2018, stated that she would be unable to provide submissions by 19 June 2018 and that she had been unable to obtain representation of counsel. Again, Lang J directed by Minute dated 13 June 2018 that the proceeding would not be adjourned.

[24] Ms Rosenberg responded to Lang J’s 13 June 2018 Minute by email of 14 June. I took this email, as did AMP, as confirming that she would not take any further steps in relation to the 22 June hearing.

[25] AMP sought by memorandum dated 15 June 2018 that, in the event Ms Rosenberg did not appear at the review hearing, (either in person or by counsel), and/or did not file submissions as directed, the Court exercise its jurisdiction under High Court Rule 7.40 to strike out the application.

[26] By Minute dated 18 June 2018, I declined to strike out on this basis. I prefer to err in favour of parties who are disadvantaged, even though the manner of
Ms Rosenberg’s prosecution of this case is so exhaustive and scattered, that it unreasonably adds to the workload of the Court. At worst, if Ms Rosenberg failed to even file submissions, the matter could proceed on the documents already on file.

[27] AMP sought, in the alternative, leave to be excused, as counsel are based in Wellington. I considered granting leave as it was clear from Ms Rosenberg’s communications she would not appear or be represented and it also seemed she would not file submissions. It was unreasonable in those circumstances to require AMP to appear. However, I decided that, given Downs J’s direction that a party must appear, the same rules should apply to AMP, even though Ms Rosenberg clearly intended not to comply with either the ruling of Downs J or the softer ruling of Lang J.

[28] I therefore permitted the review hearing to proceed on the basis of written submissions from Ms Rosenberg which, for the record, consisted of the following documents being:

(a) The application for review itself, dated 10 December 2017.

(b) A document headed “High Court Review Application”, dated 7 February 2018, which was in substance submissions.

(c) The various emails referred to above regarding locating of her father’s will and grant of probate to her mother.

(d) Correspondence with the court regarding her attendance at the hearing and requests for documents.

(e) The memorandum of 21 June 2018.

[29] In addition, at the commencement of the hearing on 22 June 2018, I was advised by the Registrar that a further email had been received from Ms Rosenberg. I read this in Court and then read it more carefully in an extended and early morning adjournment designed to allow time for that purpose. The submissions in that email were substantially the same as before.

Standing

[30] The Associate Judge held that Ms Rosenberg had no standing because she was not the executor of the estate, and there was no other basis on which she could have standing.

[31] Ms Rosenberg submits that she does have standing and that Associate Judge Osborne was wrong to strike out her claim on that basis because of:

(a) the principles in the case of Cowan v Martin² relating to the rights of trustee beneficiaries;

(b) the effect of the Property (Relationships) Act; and

(c) the effect of District Court r 4.23 (which I have treated as High Court r 4.23). These two rules are identical.

[32] These arguments were all advanced before Associate Judge Osborne.

[33] The new factual position has a material effect on Ms Rosenberg’s arguments as to standing.

Principle in Cowan v Martin

[34] Ms Rosenberg submitted before Associate Judge Osborne, and still submits in her memoranda filed on review, that she can sue AMP because she is a beneficiary of Mr Rosenberg’s estate under the intestacy provisions of the Administration Act. Beneficiaries of an estate generally do not have a right to sue third parties in relation to estate claims – that is a matter for an executor or administrator. However, Ms Rosenberg relies on Cowan v Martin, where the Court of Appeal held that a beneficiary may bring a derivative action against third party wrongdoers to a trust/estate in special circumstances.³ Situations that have been described as special circumstances include fraud on the part of the trustee, collusion between the trustee

² Cowan v Martin [2014] NZCA 593.

³ Cowan v Martin [2014] NZCA 593 at [53].

and the third party, or the insolvency of the trustee. While those do not represent an exhaustive list, the question is whether the circumstances are sufficiently special to make it just for the beneficiary to have a remedy.⁴

[35] However, on the new factual scenario, Ms Rosenberg is not a beneficiary (or a potential beneficiary) of her father’s estate. She has filed a copy of a will naming her mother as sole beneficiary. Cowan v Martin does not apply. The assignment of any interest Ms Rosenberg’s mother may have in the life insurance proceeds to Ms Rosenberg, does not make Ms Rosenberg a beneficiary of the estate. At best, it gives her rights in contract against her mother.

[36] There is therefore no need to consider Associate Judge Osborne’s finding that there are no “special circumstances” in terms of Cowan v Martin. That finding has become redundant.

Property (Relationships) Act 1976

[37] Ms Rosenberg next relies on the Property (Relationships) Act 1976 (PRA). She submits that the PRA gives her standing to bring a claim in relation to the life insurance benefit, because:

(a) Her mother has rights under the PRA, as the policy constitutes relationship property; and/or

(b) The PRA contains provisions that allow the Court to hear from, or consider the interests of, persons other than the spouse.

[38] This argument is very far from the mark.

[39] The Associate Judge correctly found that the PRA has no application in this context at all. There is no proceeding under the PRA. The sections of the PRA which allow the Court to hear from, or consider the interests of, persons other than a spouse,

4. Roberts v Gill [2010] UKSC 22; [2011] 1 AC 240 at [46] (cited in Nawisielski v Nawisielski [2014] NZHC 2039 at [20]).

only apply to a proceeding for division of property under the PRA. They have no application in this context.

[40] The PRA is irrelevant.

Rule 4.23 of the High Court Rules

[41] Ms Rosenberg’s third argument for standing is based on r 4.23 of the High Court Rules, which allows the Court to hear from beneficially interested persons other than trustees, executors or administrators.

[42] Rule 4.23 provides:

4.23 Trustees, executors, and administrators

(1) Trustees, executors, and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees, executors, or administrators.
(2) There is no need to join persons beneficially interested in a trust or an estate to a proceeding, because the trustees, executors, and administrators represent those persons.
(3) However, the court may, at any stage order that a beneficially interested person be made a party, either in addition to or instead of the trustees, executors, or administrators.

[43] Associate Judge Osborne did not refer to Ms Rosenberg’s argument in connection with r 4.23.

[44] However, as with the application of Cowan v Martin, on her new “pleading”, the argument is clearly not applicable in any event. Ms Rosenberg is not “a person who is beneficially interested in a trust or estate”. She would have rights as against her mother who may be beneficially interested, but Ms Rosenberg herself has no beneficial interest in the estate.

[45] Further, I do not read r 4.23 as giving a beneficiary standing to bring a proceeding, as opposed to being joined into a proceeding that has been validly brought.

Conclusion as to standing

[46] I therefore agree with Associate Judge Osborne’s conclusion that Ms Rosenberg has no standing, as opposed to her mother, who it appears instructed lawyers back in 2009, but ultimately did not issue proceedings against AMP.

Alternative ground of time-bar/abuse of process

[47] I further conclude that the claim should be struck out as it was brought outside the time limitation period prescribed by the Limitation Act 1950.

[48] For a defendant to obtain a strike-out based on a time-bar:

(a) The defendant must satisfy the Court that the plaintiff’s cause of action is so clearly time-barred that the plaintiff’s claim can properly be regarded as frivolous, vexatious or an abuse of process.

(b) If the defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for the particular cause of action by the relevant Limitation Act, the defendant will be entitled to an order striking out that cause of action unless the plaintiff shows that there is an arguable case for an extension or postponement which would bring the claim back within time.

[49] I agree with Mr Knight, for AMP, that this is an archetypal example of a case where the Limitation Act should apply.

[50] Associate Judge Osborne did not determine the issue of time limitation because he had already found the claim should be struck out on the basis of Ms Rosenberg’s lack of standing. While AMP pleaded in its notice of opposition to the application for review that the matter should be referred back to the Associate Judge to determine the time limitation issue (should the review be successful on the standing point, which it is not), Mr Knight submitted before me that this Court should exercise its power to determine the strike-out on the time limitation point, as well as on the standing issue. I agree. Ms Rosenberg also requested in her written submissions on the review that
the limitation issue be considered “afresh” and she refers to her previous submissions as to why the pleaded time limitation period should not apply, or should be either extended or postponed.

[51] The High Court on review may make such order as may be just. Where an application was not determined by the Associate Judge in chambers, the High Court on review is able to determine the application on a substantive basis. This is especially so where sending the matter back to the Associate Judge would lead to further delay and expense.

[52] Causes of action based on acts prior to 1 January 2011 are subject to the Limitation Act 1950 (the 1950 Act).⁵

[53] Ms Rosenberg’s statement of claim alleges that AMP breached the policy by failing to pay the life insurance benefit.

[54] AMP submits that any cause of action for payment of the life benefit is a claim in contract which accrued on 18 April 2006, the date of Mr Rosenberg’s death, and that under the 1950 Act a six-year limitation period applies.⁶

[55] With regard to life insurance contracts, the determination of when a cause of action accrues is well-established:⁷

Prima facie the cause of action in respect of the sum insured arises upon the maturity of the policy, ie upon the happening of the death of the life insured or such other event on the happening of which it is expressed to be payable.

[56] In Arnold v American International Assurance Company (Bermuda) Ltd t/a AIG Life, the Court stated that in the case of a non-liability insurance policy:⁸

⁵ Limitation Act 2010, s 59.

⁶ Limitation Act 1950, s 4(1)(a).

7. J Birds, B Lynch and S Paul MacGillivray on Insurance Law (13^th ed, Sweet & Maxwell, London, 2015) at [26-018]; see also R Merkin and C Nicoll Colinveaux’s Law of Insurance in New Zealand (Thomson Reuters, Wellington, 2014) at [7.4.1(3)] “The rule is that the assured’s cause of action accrues on the date of the occurrence of the insured peril. This principle applies to [...] life insurance policies [...].”
8. Arnold v American International Assurance Company (Bermuda) Ltd t/a AIG Life HC Auckland CIV-2008-404-6987, 4 June 2009 at [24].

... the right to indemnity, and hence the cause of action, comes into existence immediately loss is suffered by the happening of the insured event, except to the extent that that prima facie position is displaced or modified by express terms in the policy.

[57] The Court of Appeal in Scott v Sovereign Assurance Company Limited, dealing with a critical illness policy, similarly stated that “the critical question is to determine what is the “insured event” and when it occurred” and held that “there is no dispute that a cause of action accrues when everything has happened entitling a plaintiff to judgment on the cause of action asserted”.⁹

[58] The policy provided for payment of a benefit in the event of the death of the life insured (Mr Rosenberg):

(a) The applicable clause (under the heading “Life Insurance Component” on page 2 at “A.”) states:

Subject to the terms of the Policy, a Benefit is payable under this Insurance Component if the Event When Payable for the Benefit occurs on or after the Component Commencement Date and prior to the Expiry Date for the Benefit.

(b) The policy schedule defines the “Event When Payable” as “Death of the Life Insured”.

[59] On the face of it, the cause of action accrued on Mr Rosenberg’s death and Ms Rosenberg’s claim would therefore be time-barred as the proceeding was filed on 10 April 2016, which was (significantly) more than six years after the death of her father on 18 April 2006.

[60] However, I first need to consider the many arguments relied on by Ms Rosenberg to extend or postpone the time limitation period.

⁹ Scott v Sovereign Assurance Company Limited [2011] NZCA 214 at [27] and [35].

Express terms in policy modifying limitation period

(i) Clause 2 of conditions relating to Terminal Illness Benefit

[61] In written submissions to the Associate Judge, Ms Rosenberg contended that the policy contains an extended limitation period which prevails over the limitation period under the Limitation Act. Specifically, Ms Rosenberg alleges that clause 2 of the “Conditions Relating to the Terminal Illness Benefit” extends the limitation period up to 12 months before 7 October 2049.

[62] However, clause 2 clearly only applies to benefits claimed as a result of a terminal illness. The present proceeding does not relate to a terminal illness claim under the policy.

[63] Furthermore, clause 2 of the “Conditions Relating to the Terminal Illness Benefit” does not create an extended limitation period for purposes of the Limitation Act. It states, “This Benefit shall not be payable if the Date of Notification is less than 12 months before the Expiry Date of the Life Insurance Benefit under this Insurance Component”. The effect of the clause is that a claim for a terminal illness benefit cannot be made less than 12 months before the expiry date, being 7 October 2049. It does not extend or otherwise modify the limitation period for bringing proceedings under the policy.

(ii) Clause B

[64] Ms Rosenberg further submits that there is an express term in the policy, clause B, which means that her cause of action would not have accrued until the “date of notification”.

[65] Under clause B of the life insurance component of the Policy, the benefit becomes payable at the later of the Date of Notification of the Event When Payable and the date specified in the Conditions.

[66] The Conditions do not specify a date, but the Date of Notification is defined in the general policy conditions to mean “the date on which we receive at our

New Zealand Head Office in Wellington in writing on our then current form notification of the occurrence of the Event when payable”.

[67] I agree with AMP that clause B is a notification provision only and does not postpone the accrual of a cause of action for the life insurance cover under the policy.

[68] As Mr Knight submits, a distinction has to be drawn between terms that relate to the occurrence of an insured event, and terms which merely create a condition precedent to the right to make a claim, or provide the insurer with a defence.¹⁰ Only the first category of terms will vary the accrual of the cause of action. Clause B is in the latter category and does not postpone the accrual of the cause of action.¹¹ If it were otherwise, the insured would be able to defer the operation of the1950 Act by delaying compliance with the notification condition. That would be senseless.

Pleading of breach of policy by declinature

[69] Even if the above arguments as to express terms were accepted on Ms Rosenberg’s pleading, AMP declined cover under the policy in 2006 and Ms Rosenberg’s claim is framed (correctly) on the basis that by doing so AMP breached its obligations under the policy. The alleged breach would plainly give rise to a cause of action at the time of AMP’s declinature, and therefore the cause of action would still have accrued at the latest in 2006, which as I have said is considerably more than six years before the commencement of this proceeding on 10 April 2016.

Fresh accrual of action on acknowledgement of claim

[70] Ms Rosenberg next submits that the insurer “acknowledged the claim” in an email dated 4 May 2015, apparently not provided to AMP. As a result, she claims that pursuant to s 25(4) of the Limitation Act, the limitation period started to run again from the date of the email.

¹⁰ Colinveaux’s Law of Insurance in New Zealand (Thomson Reuters, Wellington, 2014) at [7.4.2(3)].

¹¹ Arnold v American International Assurance Company (Bermuda) Ltd t/a AIG Life HC Auckland CIV-2008-404-6987, 4 June 2009 at [31]; Callaghan v Dominion Assurance Co Limited [1997] 2 Lloyds LR 541.

[71] I find that there is no “acknowledgement” in terms of s 25(4), which requires an acceptance of a legal liability to pay the debt which is claimed.¹² There is nothing to suggest, or support the contention, that AMP has ever acknowledged that it accepts it has a legal liability to pay the life insurance benefit claimed by Ms Rosenberg, nor does Ms Rosenberg plead an “acknowledgement” in terms of acceptance of liability, to the contrary.

Postponement of limitation period in case of fraud or mistake

[72] As a further alternative, Ms Rosenberg says that her action is for relief from the consequences of a mistake, and that by virtue of s 28 of the 1950 Act, the limitation period did not begin to run until Ms Rosenberg discovered the mistake, or could have discovered it.

[73] The alleged mistakes seem to be that AMP was mistaken in considering the policy was cancelled before Ms Rosenberg’s father’s death and in considering that Ms Rosenberg was not entitled to see information on her father’s file without letters of administration. In addition, AMP made a mistake when it lost important telephone evidence and when it said that “there was no life to insure”.

[74] For s 28(c) to apply, a plaintiff must plead and prove a cause of action that involves mistake as a necessary ingredient.¹³ Ms Rosenberg’s action is not an action in mistake, or for “relief from the consequences of a mistake” because “mistake”, in a legal sense, is not an essential part or necessary ingredient of a claim for payment under an insurance contract.¹⁴ Ms Rosenberg is simply suing in response to AMP’s decision to decline payment of Mr Rosenberg’s life insurance benefit. The sorts of “mistakes” Ms Rosenberg alleges do not amount to “mistake” in terms of s 28(c).

Extension of limitation period in case of disability

[75] Ms Rosenberg submits that “[t]he disability exception in the 1950 Act is also another option”.

¹² Heli Holdings Ltd v The Helicopter Line Ltd [2016] NZHC 976 at [726].

¹³ James v McMahon [2013] NZHC 3018 at [61].

¹⁴ James v McMahon [2013] NZHC 3018 at [52]-[61].

[76] Section 24 of the 1950 Act provides that, despite the expiry of a limitation period under the Act, a plaintiff who was under a disability at the time the cause of action accrued may bring proceedings up to six years from the date the plaintiff ceased to be under a disability.

[77] Section 2(2) of the Limitation Act states that “... a person shall be deemed to be under a disability while he is an infant or of unsound mind”.

[78] Ms Rosenberg would therefore have to establish that she is of unsound mind.

[79] Ms Rosenberg’s statement of claim contains a series of statements as to her health. For example:

I am disabled. I am not well. I have been through a long battle for a rare medical disorder (from 2004 up to and including the present time). It is a serious condition involving my spine, brain and more ...;

I have had a long and difficult battle for a diagnosis for a rare condition (from 2004) ...”

[80] Ms Rosenberg has not pleaded (nor is there any tenable support for a pleading), that she is of “unsound mind”. The definition of a “disability”, for the purposes of the Limitation Act, does not extend so far as to encompass “physical disability, or a mental inability or incapacity short of unsoundness of mind”.¹⁵

[81] There is no extension of the limitation period available to Ms Rosenberg on this basis.

No period of limitation for actions in respect of trust property

[82] Next, Ms Rosenberg submits that an unpaid life insurance claim is a sum held in trust by the insurance company, and that “her family” has an equitable right in the proceeds of the policy. She submits that ss 4(9) and 21 of the Limitation Act apply, such that no period of limitation applies to her claim:

¹⁵ T v H [1995] 3 NZLR 37 (CA) at 48.

[83] Section 4(9) provides that the six-year limitation period prescribed under s 4(1) does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief. Section 21(1) provides that no limitation period applies to an action by a beneficiary under a trust, but only if that action is for fraudulent breach of trust or to recover property from the trustee.

[84] A claim for payment of an insurance benefit is not a claim for specific performance or for equitable relief in terms of s 4(9); I have already held that Ms Rosenberg is not a beneficiary under a trust and in any event, this is not an action by a beneficiary under a trust. It is a claim in contract, so s 21(1) does not apply.

Reasonable discoverability

[85] Ms Rosenberg also submits that she was unable to discover the information that she needed to make a claim because AMP refused to provide information to her and because her mother and brother also refused to provide information to her when she requested it. As such, she says that the limitation period should be extended.

[86] As AMP submits, there is no general doctrine of reasonable discoverability in respect of limitation periods under the Limitation Act.¹⁶ To the extent that there is a rule of “discoverability”, for limitation purposes, it has been confined to limited categories of cases.¹⁷ Ms Rosenberg’s cause of action is not one where case law has recognised that a requirement of reasonable discoverability is applicable. In any event, her cause of action accrued on the occurrence of the life insured’s death, and she knew about her father’s death. What she knew or did not know about the terms of the contract is irrelevant.

[87] I note that, although not ultimately relevant to the application of the 1950 Act in this case, AMP points out that Ms Rosenberg’s statement of claim pleads that it was known in 2006 that AMP did not accept the claim under the policy, and also pleads that by 2009, lawyers were instructed by Ms Rosenberg’s mother, to engage with AMP in relation to this matter.

¹⁶ Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [38].

¹⁷ Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [38].

Section 22 of the Limitation Act

[88] Most of the above arguments were contained in submissions before Associate Judge Osborne, (though not considered by him). As a further argument on review, Ms Rosenberg alternatively submits that s 22 of the 1950 Act applies, and that, accordingly, the applicable time limitation period is 12 years from the accrual of the cause of action.

[89] Section 22 of the 1950 Act provides that:

Subject to the provisions of subsection (1) of the last preceding section, no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of 12 years from the date when the right to receive the share or interest accrued [...].

[90] Section 22 extends the time period for claims to personal estates of deceased persons, being claims against personal representatives, or beneficiaries who have wrongfully received estate assets.¹⁸

[91] I agree with AMP that this section has no application to the present case. This proceeding is not a claim “to the personal estate of a deceased person”. Rather, Ms Rosenberg’s claim is against an insurer for payment under an insurance contract.

Summary regarding time-bar

[92] None of the extension or postponement provisions relied on by Ms Rosenberg applies.

[93] The action falls within s 4(1)(a) of the 1950 Act. Section 4(1)(a) bars claims relating to “actions founded on simple contract” from being brought after the expiry of six years from the date on which the cause of action accrued.

¹⁸ A McGee Limitation Periods (7^th ed, Thomson Reuters, London, 2014) at [14.042].

[94] The cause of action accrued almost 10 years before this proceeding was filed. The claim is clearly time-barred and can properly be regarded as frivolous, vexatious or an abuse of process. It is hereby struck out on that additional basis.

Conclusion and costs

[95] The review application is dismissed. In addition, Ms Rosenberg’s claim is struck out on the ground that it is time-barred and an abuse of process.

[96] I make an order for 2B scale costs on this application, in favour of AMP.

[97] It is important Ms Rosenberg understands that even had she been able to continue this proceeding, it would appear to have been unavoidable that she pay security for costs since she is both an overseas litigant, and someone who has repeatedly said she has no money. These are circumstances where security for costs is ordered as a standard matter. Osborne AJ has already indicated that $20,000 would be an appropriate sum, and I agree. That amount would have had to be paid at an early stage of the proceeding. Given Ms Rosenberg is unable to pay that amount, the proceeding would have been struck out on that basis anyway.









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Hinton J