Ipsofactoj.com: International Cases [2000] Part 3 Case 4 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Mountain Road (No. 9) Ltd

- vs -

Michael Edgley Corp Pty Ltd

TIPPING J

GALLEN J

DOOGUE J

8 SEPTEMBER 1997


Judgment

Tipping J

INTRODUCTION

  1. The appellant (Mountain Road) contends that the First Respondent (Edgley) commenced these proceedings prematurely before it had acquired any title to do so as assignee. The Second Respondent (Bay Textiles) did not appear and, as below, abides the decision of the Court. Tompkins J held that Edgley did have the right to sue and its proceeding was not premature. Mountain Road has appealed from that decision.

  2. Mountain Road supplied the fabric out of which a large tent was made in 1985 by Bay Textiles for Edgley’s predecessor in title, Venue Enterprises Ltd (Venue). Edgley claims that it is entitled by assignment to sue Mountain Road and Bay Textiles for damages as a consequence of faults in the fabric and in the manufacturing process. By a document entitled Memorandum of Agreement of Assignment entered into on 15 February 1990, Venue assigned to Sherwood Productions Ltd (Sherwood) all its rights, interest, ownership and benefits in the tent.

  3. There is an issue whether the terms of this assignment were apt to assign the causes of action alleging negligence in the manufacture of the tent and deficiencies in the fabric supplied. It is not necessary, in the light of the conclusion which we have reached on other aspects, to go into that issue in any detail. It is sufficient to say that the causes of action which Venue had against Mountain Road and Bay Textiles were within the ambit of the operative part of the assignment. Other issues aside, the assignment was worded in such a way as to transfer the right to sue on those causes of action from Venue to Sherwood.

  4. Edgley asserts title to sue on the causes of action by dint of a further Memorandum of Agreement of Assignment, between Sherwood and Edgley. This document is undated but appears to have been signed by Sherwood on or about 20 March 1990. It is similar in terms to the Venue-Sherwood assignment and similarly purports to be an assignment to Edgley by Sherwood of all its rights, interest, ownership and benefits in the tent. We are satisfied that this document also was worded in such a way that as a matter of construction the causes of action were within the property intended to be assigned to Edgley.

    VALIDITY OF ASSIGNMENT

  5. One of the issues in the case arises because this document, while executed by Sherwood, has not been executed by Edgley. Clause 2 says:

    The effective date hereof shall be the date of signature, notwithstanding the non-completion as at that date of any legal, official, statutory, municipal or other formalities, procedures or requirements.

  6. Clause 3 comprises a mutual indemnity provision. Clauses 1(b) and (c) make it clear that not only are the assignor’s rights being assigned, but also its duties and obligations in relation to the tent.

  7. The document was drawn in a form contemplating execution by Edgley. Clause 2 demonstrates that the effective date was intended to be the date of signature. The fact that the document remained undated when signed by Sherwood suggests that the date of signature, for the purposes of clause 2, was intended to be the date upon which Edgley signed the document. If the date of signature and hence the effective date was intended to be the date on which Sherwood signed, the document would no doubt have been dated by Sherwood at the time it signed.

  8. The operative provisions of the document also suggest that it was not intended to become binding between the parties until both parties had signed it. On the one hand, Sherwood was intending to transfer to Edgley all its rights in and benefits to be derived from the tent. On the other hand, as a quid pro quo, Edgley was agreeing to take over all Sherwood’s duties and obligations in relation to the tent. The document could not have become binding on Edgley without its signature, because it was undertaking liabilities thereunder. Similarly, Sherwood could hardly have been intending to become bound itself unless and until Edgley became bound by the method contemplated by the document i.e. signature: see Richards v Hill [1920] NZLR 724 per Salmond J.

  9. These internal indications that the document would not become operative or effective until signed by Edgley are supported by the minutes of the meeting of Sherwood held on 20 March 1990 which authorised its execution of the agreement. The fact that the intended assignment was contractual rather than voluntary, a proposition self evident from its terms, is confirmed by the minute which says:

    It was reported to the Board that an agreement was reached with the said Corporation [Edgley] to the assignment and a Memorandum of Agreement of Assignment was tabled.

  10. The fact that the agreement was intended to be signed by Edgley is supported by the following minute:

    The secretary also instructed that signed copies of the agreement be mailed to [Edgley] to be signed and dated, and a copy returned to [Sherwood].

  11. Against that background, it is clear that the effective date of the agreement must have been intended to be the date on which Edgley signed. There is no other sensible conclusion which can be reached in the light of Sherwood’s acknowledgment in its minutes that the document was to be dated by Edgley.

  12. The document was not sent to Edgley for execution until March 1996 by which time the limitation period for enforcing the causes of action intended to be assigned had long since expired. Indeed, Edgley has still not signed the document, albeit willing to do so. Edgley commenced proceedings prior to the expiry of the limitation period on a basis which does not require description. Edgley now accepts that if it is entitled to sue at all, its title to do so derives from the purported assignment from Sherwood under the second Memorandum of Agreement referred to above. It has been granted leave to amend its pleadings accordingly. The validity and efficacy of the letters written in December 1989 are no longer in issue because whatever the letters may or may not have achieved has been overtaken by the more formal documentation of February and March 1990. That much is acknowledged by Edgley.

  13. As indicated earlier, Mountain Road contends that Edgley had no right to sue, as assignee of the causes of action, before the effective date of the assignment and before it had been given notice of the assignment. The first proposition is, in short, that prior to the effective date there was no legal or equitable assignment of the causes of action from Sherwood to Edgley and thus when Edgley purported to sue as assignee, it had no entitlement to do so. The second proposition is that Edgley was not entitled to enforce the causes of action, as assignee thereof, until notice of the assignment had been given to Mountain Road and Bay Textiles. Edgley cannot commence further proceedings now because time has expired.

  14. It is apparent from this background that if Edgley acquired no title to sue before the limitation period expired, its proceedings were bound to fail whatever the rights and wrongs of the substantive allegations. For this reason, the High Court ordered that the assignment / limitation issues should be tried first. Those issues came before Tompkins J. As indicated earlier, he held Edgley did have title to sue and that the proceedings were validly commenced. This appeal is from that decision. In the course of his judgment Tompkins J had to deal with a number of issues. We will concentrate on the points upon which the appeal turns.

  15. The first point is whether there was a valid assignment from Sherwood to Edgley in existence at the time when Edgley commenced the proceedings. The Judge decided that the assignment was complete when signed by Sherwood. He therefore held that the effective date for the purpose of clause 2 was the date upon which Sherwood signed. For the reasons already given, we find ourselves unable to accept that conclusion. The effective date was the date upon which Edgley signed. That date had not arrived when Edgley commenced these proceedings. Nor did it arrive before the expiry of the limitation period.

  16. Whatever the position may be in other cases, this case involved a contractual assignment, not a voluntary assignment. The intended contractual assignment had not become contractually binding and effective at the time when Edgley commenced the proceedings. Thus at the time of such commencement Edgley had no right to do so.

  17. The second point which is said to lead to the same conclusion is the absence of any notice of the assignment. No notice was given to Mountain Road and Bay Textiles, as the parties allegedly liable on the causes of action assigned, either prior to the commencement of proceedings or prior to the expiry of the limitation period. Mountain Road contends that the absence of such notice is fatal to Edgley’s ability to enforce the causes of action. Edgley counters that proposition primarily by contending that notice can be given at any time, even after the limitation period has expired.

    ASSIGNMENTS AT LAW

  18. Both legal and equitable choses in action may be assigned. Each may be assigned at law or in equity. The present causes of action were legal, rather than equitable choses in action, but that distinction is immaterial for present purposes. Of present moment is the difference between an assignment at law and an assignment in equity. The validity of an assignment at law depends on whether the statutory requirements have been satisfied. Section 130(1) of the Property Law Act 1952 provides:

    Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal or equitable thing in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim that debt or thing in action, shall be and be deemed to have been effectual in law (subject to all equities that would have been entitled to priority over the right of the assignee if this Act had not been passed) to pass and transfer the legal or equitable right to that debt or thing in action from the date of the notice, and all legal or equitable and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor.

  19. The crucial point is that an assignment is not effectual in law unless and until express notice of it has been given to the persons liable, here Mountain Road and Bay Textiles, they being the parties against whom the assigned causes of action lay. As indicated above, no such notice was given prior to the commencement of the proceedings. Nor was it given prior to the expiry of the limitation period. Thus, even if the assignment had been contractually valid between assignor and assignee, it would not have been effectual as a legal assignment and Edgley would have had no title to sue on the causes of action as legal assignee thereof at the time it purported to do so. Nor did Edgley acquire such title to sue at any time prior to the expiry of the limitation period.

    ASSIGNMENTS IN EQUITY

  20. The assignment’s lack of effect as a legal assignment is not, however, the end of the matter. In spite of that fact, Edgley contends that the assignment was effective in equity i.e. as an equitable assignment. Equitable assignments do not require the formality of assignments at law. This led the Judge to say:

    The basic requirement of an equitable assignment is a clearly manifested intention to divest the assignor of property and vest it in the assignee. Viewed in the light of the surrounding circumstances, I am left in no doubt that Sherwood, by executing the Memorandum of Agreement of Assignment, evinced a clear intention to divest itself of any rights it had in the tent, including the right to sue in respect of any defects and to vest those rights in the plaintiff.

  21. What the Judge said may have been correct if the assignment had been intended to take effect as a voluntary assignment; but clearly that was not so. This assignment, as earlier demonstrated, was undoubtedly intended to be contractual in nature. Edgley was providing consideration by its agreement to take over Sherwood’s obligations. It was not a case of gift; it was a case of mutual promises. There is, therefore, no need to consider any aspect of the law about voluntary assignments such as was in issue in Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 666 (CA). Specifically, there is no need to consider the difficult question whether equitable assignments which are voluntary, i.e. not for consideration, will be enforced. The general rule is that equity does not assist a volunteer. But the scope of that rule in relation to assignments does not fall for consideration in the present case.

  22. The present point is whether, on the assumption the assignment was contractually binding between assignor and assignee, it was effective in equity against third parties, in spite of its not being effectual at law for want of notice to the third parties affected. The point of principle is whether an equitable assignment also requires notice to the parties liable before it becomes effective against those parties.

  23. Mr. Worth argued that such notice was required in cases of equitable assignments in the same way as it is required for legal assignments. Mr. Harrison took issue with that submission and raised the further point that if notice is required to perfect an equitable assignment, such notice can be given at any time and specifically can be given after proceedings relying on the assignment have been commenced, and even after the limitation period has expired.

    NEED FOR NOTICE TO THIRD PARTY

  24. It is stated in 4 Halsburys Laws of England Vol 6, para 42 that in order to make an equitable assignee’s title effective against third parties, notice must be given to the third party. The question is whether that is a correct statement of the law. The cases cited in Halsbury's to support the proposition are cases primarily concerned with questions of priority between competing assignees of the same chose in action: Dearle v Hall, Loveridge v Cooper (1828) 3 Russell 1, 23, 38 ER 475; Meux v Bell (1841) 1 Hare 73, 66 ER 955, Kelly v Selwyn [1905] 2 Ch 117, 121. The proposition is also supported in a more general sense by the decision of the House of Lords in William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454.

  25. Speaking of the equitable assignment involved in that case Lord Macnaghten said at 462:

    All that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person. If the debtor ignores such a notice, he does so at his peril. If the assignment be for valuable consideration and communicated to the third person, it cannot be revoked by the creditor or safely disregarded by the debtor.

  26. The context in which those observations were made was different from the present, in that it was whether the debtor had received sufficient notice to make him liable to pay again, he having paid the assignor, not the assignee. But the tenor of His Lordship’s speech supports the view that the title of an equitable assignee is not effective against third parties unless and until they have been given notice.

  27. Lord Denning MR. cited the Halsbury statement with approval in Warner Bros Records Inc v Rollgreen Ltd [1976] 1 QB 430, 442. The subject matter of that case was the equitable assignment of an option. The Court of Appeal in England held that the assignee could not enforce the option without giving notice of the assignment to the third party. No sufficient relationship exists in equity between assignee and third party until the third party has received notice. This equates the situation in equity with a legal assignment. Lord Denning cited Stocks v Dobson (1853) 4 De G.M. & G. 11, 15-16 for his proposition:

    It is a settled principle of equity that in order to perfect the title of an assignee of a debt notice to the debtor is necessary.

  28. There can be no logical distinction between an assignment of a debt and an assignment of any other chose in action. In Warner Bros, Roskill LJ and Sir John Pennycuick agreed with Lord Denning on the notice point. Their reasoning was somewhat different but to the same effect. This is how Roskill LJ put it at 443-444:

    ... the only rights that an equitable assignment can create in the equitable assignee are rights against his assignor who thenceforth becomes the trustee of the benefit of the option for the assignee, and the assignor could, of course, be compelled in equity to exercise those rights for the benefit of the assignee. As Sir John Pennycuick said during the argument, very often in such a case the equitable assignee will take a power of attorney from his assignor, but in the present case that precaution was not taken. The present equitable assignee never became the legal assignee, and so, in my judgment, never became in a position to enforce the contractual right, or, as Lord Denning MR. has put it, the legal chose in action, created by the grant of the option to the original grantee.

  29. Sir John Pennycuick’s approach was as follows at 445:

    Where there is a contract between A and B, and A makes an equitable but not a legal assignment of the benefit of that contract to C, this equitable assignment does not put C into a contractual relationship with B, and, consequently, C is not in a position to exercise directly against B any right conferred by the contract on A. The equitable assignment may be converted into a legal assignment by notice to B; see s136 of the Law of Property Act 1925 [in New Zealand s130 of the Property Law Act 1952]; but, so long as the assignment remains equitable only, C has no more than a right in equity to require A to protect the interests which A has assigned and to do so by exercising the option himself. If A omits to exercise the option for any reason and the option runs out it is of no avail to C in subsequent proceedings against B for it is then too late for the option to be exercised.

    This passage is authority for the view that an equitable assignee who has not procured his assignor to sue on the cause of action cannot do so himself after the cause of action has run out by expiry of the limitation period.

  30. It is not however necessary in this case to decide whether, and if so when, an equitable assignee who has given notice to the third party may enforce the cause of action direct and in his own name. Both Roskill LJ and Sir John Pennycuick indicated in Warner Bros that in such circumstances the equitable assignee may not proceed direct against the third party even after giving notice. On that basis, the assignor has to sue for the benefit of the assignee. There may be something to be said for not restricting the circumstances in which an equitable assignee may sue direct without the involvement of the assignor. Following an equitable assignment of a cause of action the whole beneficial interest therein is vested in the assignee. The assignor retains only a bare legal title. The continued involvement of the assignor is more a matter of form than substance. There is an interesting discussion of this topic in Three Rivers Council v Bank of England [1955] 4 All ER 312 (CA). But, as indicated earlier, the absence of notice in the present case makes this issue academic. Nevertheless, it should be noted that if the historical approach requiring the involvement of the equitable assignor is held to prevail, this would have raised another issue.

  31. The only relevant New Zealand case which has come to our attention, and it is mentioned in the New Zealand Commentary on Halsbury’s Law of England, is Neave v Neave (1926) GLR 254. That was a case where a will beneficiary had purported to assign his expectant interest under the will. Notice of the assignment was given to the will trustees six days after the death of the testatrix. By deed dated some two months later, and before any part of the income of the settled fund had become payable, there was a purported cancellation of the assignment. It became material to consider if and when the assignment had become effective. Adams J held that the assignment was equitable in that it was of an expectancy. While it was binding between assignor and assignee on the death of the testatrix, this being the date on which it was intended to take effect inter partes, the assignee did not have a complete title until notice of the assignment had been given to the parties liable to act on it, namely the will trustees.

  32. Citing the three priority cases which we have mentioned above, Adams J said, and this was in the context of an equitable assignment:

    As against third parties the title [of the assignee] is perfected by the notice.

  33. This decision is therefore direct support for the statement made in Halsbury’s Laws (supra). In Neave v Neave the context was not priority between competing assignees, but the same as that which arises in the present case, namely the date upon which an equitable assignment becomes effective as between assignee and third party.

  34. It is clear enough from the cases cited, and many other authorities, that in the case of an equitable assignment of a chose in action, notice to the person liable is not necessary to complete the equitable title of the assignee as between assignor and assignee. Whereas in such circumstances the legal title to the chose remains in the assignor until the requirements for a legal assignment have been satisfied, equitable title is vested in the assignee immediately. But notice to the person liable has consistently been regarded as necessary to give the assignee title to claim the benefit of the chose in action against that person.

  35. Because of the view he took of the case, Tompkins J did not address this question. He simply said:

    The conclusion that there has been an equitable assignment ... accords with the realities of the situation as they existed at the time.

  36. He then went on to refer to the December 1989 letters, but Edgley now accepts, as it must, that it is the February and March 1990 memoranda of agreement which govern the rights and obligations of the parties.

  37. No case was cited by Mr. Harrison in support of his contention that notice to the person liable was not required to make the title of an equitable assignee complete against such person. Our researches have not uncovered any such case, although the decision of Scott J in Weddell v J A Pearce & Major [1987] 3 All ER 624, to be discussed in more detail below, might be thought to provide some indirect support for Mr. Harrison’s proposition.

  38. The trend of authority supports the view that notice in the case of an equitable assignment is necessary to perfect the title of the assignee. Indeed, the decisions of Adams J in Neave and the Court of Appeal in Warner Bros amount to authority directly against Mr. Harrison’s argument, albeit neither decision is binding on this Court. The present is a case in which equity should follow the law. From the point of view of the third party, it matters little whether the assignment, as between assignor and assignee, is legal or equitable. What is material to the third party is that there has been an assignment of whichever kind and that there is now a new creditor or plaintiff. We can think of no convincing reason why the requirement for notice to third parties should differ depending on whether the assignment is legal or equitable. No such reason was advanced by Mr. Harrison.

  39. We accept Mr. Worth’s submission that both authority and principle support the view that the notice requirements of legal and equitable assignments should be the same. It follows that when the present assignment is viewed as equitable, it was not effective against Mountain Road and Bay Textiles prior to their being given notice of it. Thus Edgley had no title to sue pursuant to the assignment when it purported to do so.

  40. Before moving from this topic we should note the comment made by the learned author of the title Choses in Action in The Laws of New Zealand Vol 4, at para 30. The author says:

    Giving notice is not a requisite of an equitable assignment. However, it does affect priorities and fixes the debtor or fundholder with an obligation to pay the assignee.

    This passage is open to misconstruction, and on one view does not accord with the correct legal position. If the author is referring to notice between assignor and assignee, his statement that such a notice is not a requirement of an equitable assignment is quite correct. But, from the tenor of the second sentence, it appears that the author may have been referring to the giving of notice to the third party. The cases cited in support of the text are William Brandt’s (supra); Re City Life Assurance Co Ltd [1926] Ch. 191, 215; Holt v Heatherfield Trusts Ltd [1942] 2 KB 15; Weddell (supra); and UTC Ltd v NZI Securities (Australia) Ltd (1991) 4 WAR 349, 356.

  41. As demonstrated above, the decision of the House of Lords in William Brandt’s is no authority for the proposition that notice to the third party is not required before an equitable assignee can take action against the third party. The passage relied on from the judgment of Lord Hanworth MR. in the City Life case was dealing with the proposition that no notice is required between assignor and assignee, not with the relationship between assignee and third party. The same can be said of Holt v Heatherfield Trust Ltd: see the judgment of Atkinson J at page 5. We will discuss Weddell further below. The final case cited is UTC Ltd. Again, this was a case which turned on the proposition that there is no need for notice between assignor and assignee: see Ipp J at 356 (Nicholson J concurring, Malcolm CJ non contra). There are in fact two Australian decisions which support the need for notice to be given to the third party before an equitable assignment is complete: see Calaby Pty Ltd v Ampol Pty Ltd (1990) 97 ALR, 71 NTR 1 per Angel J and Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548 in which Giles J conducted a comprehensive survey of the complexities of this branch of the law.

  42. To the extent that the author’s statement cited above suggests that notice to the third party is not necessary before the assignee of an equitable assignment can enforce it against the third party, the statement is not a correct reflection of the law. It is a correct reflection of the law in relation to notice as between assignor and assignee, that being the subject with which the cases cited in support were dealing.

    NOTICE AFTER EXPIRY OF LIMITATION PERIOD

  43. The final point is whether the notice which was given to Mountain Road and Bay Textiles in March 1996, after the expiry of the limitation period, can be regarded as a sufficient notice in the sense that it has the effect of retrospectively validating the commencement of proceedings within time.

  44. In support of his submissions that such retrospective notice could be given, Mr. Harrison relied upon Weddell (supra). This case proceeded on the basis that an equitable assignee may in certain circumstances sue in his own name without joining the assignor as a party. That there are such circumstances is supported by two decisions of the House of Lords: William Brandt’s Sons Co v Dunlop Rubber Co Ltd (supra) and Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1. But the proposition adopted by Scott J that an action by an equitable assignee, who should have joined the assignor, is not a nullity assumes that the equitable assignee is otherwise entitled to sue. Such nullity decisions do not address, at least directly, the question whether notice to the third party is necessary before an equitable assignee can sue. In Weddell the assignment was executed on 7 February 1986. Notice was not given to the defendants (the third parties) until 4 June 1986. Time was said to have expired on 28 May 1986. The plaintiffs had issued their proceedings as equitable assignees on 2 May 1986. They had not, however, joined their assignor. Scott J held, consistently with the House of Lords’ cases, that the writ was not a nullity on account of the failure to join the assignor. In considering the limitation issue, (the notice having been given out of time) Scott J expressed his disagreement with the earlier decision of Roskill J in Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101; [1964] 1 All ER 216.

  45. In that case, notice of the assignment was given to the third party after time had expired. Roskill J held that "antecedent notice to [the third party] before action brought" was clearly required in order to give the assignee title to sue. It should be said that this was a case of an assignment at law, and thus Roskill J’s decision cannot be used as direct authority for the position in the case of an equitable assignment. But once it is held that notice is required in cases of equitable assignment, in the same way as it is required in cases of legal assignment, Roskill J’s decision is directly relevant to the limitation issue. In that respect, he held that a claim brought before notice was invalid because, to stop time running, the proceeding must be commenced by "a person properly entitled to bring it".

  46. Scott J disagreed with this conclusion, but on a basis which we respectfully regard as unsound. The Judge did not recognise any difference between a proceeding lacking a party (the assignor not joined) and a proceeding where there is no title in the plaintiff to sue at all because a pre-requisite to the right to sue (notice of the assignment to the defendant) is absent.

  47. It was in a case of the second kind that Roskill J held that the proceeding was a nullity in contrast to cases of the first kind which are not nullities. The difference is between the formality of parties and the substance of a pre-condition to the existence of the cause of action. The equitable assignee’s ability in some circumstances to commence proceedings without joining the assignor cannot logically be equated with a similar ability to sue without giving notice to the third party. The fact that Scott J did not accept the essential distinction between the two situations is apparent from his comment that if the House of Lords’ cases (which dealt with the absence of the assignor as a party) had been cited to him, Roskill J could not have decided the equitable assignee point as he did. This is not so because the House of Lords’ cases were dealing with a materially different point from that decided by Roskill J, who, in our judgment, was right on the limitation issue.

  48. Time continues to run in favour of a prospective defendant in respect of an existing cause of action unless and until someone entitled to enforce the cause of action validly commences proceedings for the purpose. If notice of the assignment has not been given to the prospective defendant, the assignee plaintiff is not competent to enforce the cause of action so assigned.

  49. When Scott J said in Weddell that the plaintiffs, as equitable assignees, had locus standi to sue, he appears to have based his conclusion on the proposition that the absence of the assignor did not make the suit a nullity. To the extent that he meant the absence of notice was not fatal, we cannot agree.

  50. For the reasons given earlier, notice to the person liable is required before an assignee (whether legal or equitable) can enforce the cause of action assigned. It follows that Edgley’s proceeding is invalid, not only because at its commencement the assignment was in any event contractually incomplete, but also because no notice of the assignment had been given to the defendants.

  51. For these reasons, the decision of the High Court that Edgley had the right to sue cannot be upheld. The appeal is allowed. We set aside the judgment of the High Court and make an order striking out Edgley’s proceeding on the basis that it cannot succeed. We allow the appellant costs in this Court against the First Respondent in the sum of $5,000, plus disbursements, together with accommodation and travelling expenses of one counsel to be fixed, if necessary, by the Registrar. All questions of costs in the High Court consequent upon the striking out of the proceeding are to be determined in that Court if the parties cannot agree.


Cases

Calaby Pty Ltd v Ampol Pty Ltd (1990) 97 ALR, 71 NTR 1; Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101; [1964] 1 All ER 216; Dearle v Hall, Loveridge v Cooper (1828) 3 Russell 1, 23, 38 ER 475; Holt v Heatherfield Trusts Ltd [1942] 2 KB 15; Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 666 (CA); Kelly v Selwyn [1905] 2 Ch 117; Meux v Bell (1841) 1 Hare 73, 66 ER 955; Neave v Neave (1926) GLR 254; Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1; Re City Life Assurance Co Ltd [1926] Ch. 191; Richards v Hill [1920] NZLR 724; Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548; Stocks v Dobson (1853) 4 De G.M. & G. 11; Three Rivers Council v Bank of England [1955] 4 All ER 312 (CA); UTC Ltd v NZI Securities (Australia) Ltd (1991) 4 WAR 349; Warner Bros Records Inc v Rollgreen Ltd [1976] 1 QB 430; Weddell v J A Pearce & Major [1987] 3 All ER 624; William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454

Legislations

Property Law Act 1952: s.130(1) 

Authors and other references

4 Halsburys Laws of England Vol 6

New Zealand Commentary on Halsbury’s Law of England

The Laws of New Zealand Vol 4

Representations

R W Worth and G D Palmer for Appellant (instructed by Simpson Grierson, Auckland)
G M Harrison for First Respondent (instructed by Lovegrove, Finn & Harbone, Auckland)
No appearance for Second Respondent (solicitors, Shief Angland, Auckland)


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