Marsman, Bleidistel and THK Trustees Limited v Nijkrake

[2008] NZCA 249

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/2008
[2008] NZCA 249

BETWEENWILLEM ROBERT MARSMAN, UTA BLEIDISTEL AND THK TRUSTEES LIMITED

Appellants

ANDROLAND JOHANNES NIJKRAKE

Respondent

Hearing:15 July 2008

Court:William Young  P, Chambers and Ellen France JJ

Counsel:D J King and C N King for Appellants

B R Balderstone for Respondent

Judgment:18 July 2008 at 3 pm

JUDGMENT OF THE COURT

AWe grant leave to the appellants to rely on the further affidavit of Mr Close.

B      We grant the respondent leave to file an affidavit in response, such affidavit to be filed and served within six weeks. 

CWe reserve costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1] On 29 April 2008 this Court gave the appellants leave to appeal against a judgment of Associate Judge Gendall in which he upheld an application by Roland Nijrake (who is the respondent to this appeal) that a caveat lodged against the appellants’ property not lapse: [2008] NZCA 104. The caveatable interest claimed by Mr Nijrake is said to arise by virtue of a constructive trust based on an allegation by Mr Nijrake that Willem Robert Marsman, the primary appellant, misappropriated money from a Canadian company, Rowi Meat Packers Inc and that this money funded, directly or indirectly, part of the purchase price or improvements on the caveated property. Mr Nijrake and Dr Marsman both held shares in Rowi Meat Packers. Rowi Meat Packers later assigned to Mr Nijrake its rights of action against Dr Marsman. Proceedings based on these allegations are currently before the courts in the Netherlands but it is common ground that the relevant law for the resolution of the claim is that of British Columbia.

[2]       One of the issues which the Associate Judge had to resolve was whether the caveat should be discharged because the underlying claim is barred and extinguished by the Limitation Act 1996 of British Columbia.  Unusually for a statute of limitations, this Act provides that where proceedings are out of time, the underlying cause of action is extinguished.  In the High Court, Dr Marsman maintained that any claim against him had now been extinguished by effluction of time and relied on an affidavit from Mr Arthur Close QC (a lawyer from British Columbia) which supported that contention.  Not addressed in the affidavit of Mr Close, however, were certain payments made by Dr Marsman which were said in the High Court by counsel for Mr Nijrake to arguably constitute “confirmation” so as to start the limitation period running afresh.  The Associate Judge adopted counsel’s argument as to confirmation when concluding that it was reasonably arguable that the claim was not extinguished by the Limitation Act 1996.

[3]       The appellants wished to support their appeal with a further affidavit from Mr Close which has now been lodged with the Court.  For the reasons which he has given in that affidavit, he concludes that, despite the payments, the underlying claim against Dr Marsman became statute-barred and is extinguished.

[4]       The appellants accept that the further evidence is not fresh but nonetheless maintain that it should be admitted.  The crux of the appellants’ argument is that the Associate Judge in effect made a factual error in his judgment by treating the claim by the respondent against Dr Marsman as being for a single global sum whereas, in fact, it is made up of a number of particular claims only some of which can be taken to have been acknowledged by the payments made.

[5]       We do not regard as controlling the usual reluctance of this Court to permit further evidence to be given on appeal.  On one possible view of what happened, the Associate Judge may have simply made a factual error as to the nature of the claims against Dr Marsman.  In any event, Dr Marsman’s counsel had obviously not realised that the payments in question would be relied on as confirmation which is presumably why they were not addressed by Mr Close in his first affidavit.  Sooner or later Mr Nijrake is going to have to confront the reasons now given by Mr Close for not regarding those payments as confirmation.

[6]       Against that background we grant leave to the appellants to rely on the further affidavit of Mr Close and likewise grant the respondent leave to file an affidavit in response, such affidavit to be filed and served within six weeks.  We reserve costs.

Solicitors:
Dennis King Law, New Plymouth for Appellants
Buddle Findlay, Wellington for Respondent