Miah v The National Mutual Life Association of Australasia Ltd

• Jurisdiction: New Zealand
• Judge: DOOGUE
• Judgment Date: 01 September 2015
• Neutral Citation: [2015] NZHC 993
• Docket Number: CIV 2013-404-002864
• Court: High Court
• Date: 01 September 2015

Between

Abdur Rahim Miah

Plaintiff

and

The National Mutual Life Association Of Australasia Limited

Defendant

[2015] NZHC 993

CIV 2013-404-002864

IN THE COURT OF APPEAL OF NEW ZEALAND AUCKLAND REGISTRY

Application for summary judgment by the defendant or alternatively an order striking out of the plaintiff's claim challenging the Official Assignee's (OA) refusal to re-assign a Life Insurance Policy jointly owned by the plaintiff and his deceased wife — the appellant and his deceased wife took the policy out in June 2006 — in April 2007 the appellant was adjudicated bankrupt and his right to receive payment under the Policy vested in the OA — in June 2007 the appellant made a claim under the Policy after his wife was murdered — after the plaintiff was discharged from bankruptcy, he requested that the OA assign the Policy to him — OA refused to do this- whether the right to receive payment of the death benefit under the Policy was a joint right or a right held by the appellant alone — whether the rights under the Policy were not property which passed to the OA — whether the Policy was owned jointly by the appellant and his wife and on the appellant's bankruptcy, the Policy was owned by the estate of his wife and the OA as tenants in common in equal shares — whether the cause of action arising under the Policy constituted a claim which was personal to the bankrupt and which was therefore outside the scope of property rights which were assigned to the OA by operation of law on adjudication — whether the OA had a statutory obligation to pay the liabilities of the estate.

Appearances:

Mr R J Hooker for the Plaintiff

Mr J Knight for Defendant

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on

1 September 2015 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Background

1 The following statement of background is taken from the synopsis of submissions which counsel for the defendant, Mr Knight, filed:

1. The defendant, The National Mutual Life Association of Australasia Limited, which at material times traded as AXA New Zealand but which currently trades (and is referred to herein) as AMP, applies for the following orders:

• 1.1 defendant's summary judgment;

• 1.2 in the alternative, strike out of Mr Miah's (amended) statement of claim dated 28 October 2014 in its entirety and the consequent dismissal of the proceeding; and/or

• 1.3 security for costs in the sum of $20,000, and that this proceeding be stayed until security for costs is given; and

• 1.4 the costs of and incidental to this interlocutory application on an indemnity basis (should AMP succeed in obtaining summary judgment or strike out) or on a “2B” scale basis (should security for costs be ordered).

2 The plaintiff's counsel, Mr Hooker, does not dispute the chronology of relevant events is as follows.

3 In June 2006, the National Mutual Life Association of Austrasia Ltd (AMP) issued a life insurance policy (the Policy) for $2 million over the life of Mr Miah's wife.

4 The Policy was jointly owned by Mr Miah and his wife.

5 On 4 April 2007, Mr Miah was adjudicated bankrupt so that his right to receive payment under the Policy vested in the Official Assignee (the Assignee).

6 In June 2007, Mr Miah made a claim to AMP under the Policy after his wife was murdered in Bangladesh in May 2007. 1

7 After Mr Miah was discharged from bankruptcy, he requested that the Assignee assign to him the Policy. The Assignee refused.

8 Mr Miah unsuccessfully challenged the Assignee's refusal to assign the Policy in the High Court. 2

9 The Assignee has confirmed he has not abandoned his interests in the Policy.

Principles

10 I accept Mr Knight has provided an accurate statement of the principles required when deciding the present applications before the Court. As it happens, it is only necessary to refer to the principles which govern summary judgment.

11 The relevant legal principles may be summarised succinctly and ought to be uncontroversial:

• (a) The court may give summary judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff's statement of claim can succeed. 3

• (b) Summary judgment “permits a defendant who has a clear answer to the plaintiff which cannot be contradicted to put up the evidence which constitutes the answer so that the proceedings can be summarily dismissed”. 4

• (c) The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept evidence uncritically that is inherently lacking in credibility or is inherently

  improbable. 5 The court may take a robust and realistic approach where the facts warrant it.

• (d) If the defendant supplies evidence that would satisfy the court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. 6

Issues

12 A complication which developed in this case was that between the date when the proceeding was adjourned part-heard and the resumed hearing in July, Mr Hooker, on behalf of the plaintiff, filed an amended statement of claim dated 23 July 2015. The claims in the current iteration of the statement of claim are as follows: 7

• 4 The new first cause of action alleges, contrary to the previous pleadings, that the insurance policy was owned by the plaintiff and Mrs Miah as tenants in common in equal shares (presumably from the policy's commencement although this is not express). The result is said to be that Mr Miah is entitled to receive half of any proceeds payable under the life component (the death benefit) of the policy (being Mrs Miah's entitlement) as executor of Mrs Miah's estate. There is no allegation that this right was affected by the plaintiff's bankruptcy.

• 5 The new second and third causes of action now allege that the plaintiff's bankruptcy has resulted in the plaintiff and Mrs Miah owning the policy as tenants in common in equal shares (the second cause of action previously alleged that Mr Miah is entitled to all of the proceeds payable under the death benefit by operation of the law of survivorship because Mr and Mrs Miah were joint owners of the policy with the consequence that Mr Miah became the sole owner on her death).

• 6 As a result, the second cause of action alleges that Mrs Miah is entitled to an equal share of any proceeds payable under the death benefit, which Mr Miah is entitled to enforce as executor of her estate.

• 7 The third cause of action alleges that Mr and Mrs Miah owned the policy as tenants in common but that the policy was “ personal” to Mr Miah and that, as a result, Mr Miah is entitled to the entirety of any proceeds payable under the death benefit.

• …

• 9 The new fourth to sixth causes of action are essentially the same as the previous third to fifth, and turn on whether any entitlement that Mr Miah has to receive any proceeds payable under the death benefit constitutes “ property” that has vested in the Official Assignee ( Assignee) by dint of s 42 of the Insolvency Act 1967 and which has not subsequently been abandoned. That issue has been addressed in AMP's synopsis of submissions.

13 Mr Miah contends there are a number of reasons for asserting that the Policy never became part of his estate in the bankruptcy. That is because:

it is not an item of property which is identified by the provisions of the Insolvency Act 1997 as passing into his estate; and

the wife owned the policy, or her interest in the policy passed to her estate following her death and the husband as executor now has the right to enforce the policy as the legal owner of it.

14 There are difficulties with the contention that the husband puts forward. These will be examined as each issue is considered.

15 It should also be mentioned that Mr Knight reminded me at the resumed hearing of this matter that he had made oral submissions on a point which appeared to be of interest to me and which I invited the parties to address at the resumed hearing. That was the potential effect of Mr Miah's adjudication on bankruptcy severing any joint tenancy in the Policy. For reasons which will become apparent below, although the topic will be discussed, it is not dispositive of the outcome of the application for summary judgment which the defendant has made.

The first cause of action

16 The first cause of action pleads that Mr Miah is the trustee and executor of the estate of his late wife. It also alleges that, in that capacity, he is entitled to one half of the share in the Policy.

17 The defendant seeks judgment under this cause of action on the ground that, contrary to the position claimed in the amended statement of claim and stated by Mr Hooker in his submissions, the husband and the wife jointly owned the property and, therefore, as a result of the operation of survivorship, all of the rights in respect of the Policy passed to Mr Miah on the death of his wife.

Who is entitled to the insurance proceeds on the death of Mrs Miah?

18 The issue is whether the right to receive payment of the death benefit under the Policy was a joint right or a right held by Mr Miah alone. In relation to that issue, Mr Knight submitted:

(i) The (contingent) contractual right to be paid the death benefit under the policy – being the only relevant chose in action conferred by the policy – was held solely by Mr Miah for his exclusive benefit. 8

• 18. The corollary is that Mrs Miah was never entitled to be paid the death benefit because the contingent contractual right was not joint. And, because of that, Mrs Miah did not have a beneficial interest in that right to receive payment either – whether as a joint tenant or tenant in common with Mr Miah – which could be enforced as against AMP.

• 19. Thus, because Mrs Miah did not have a contractual right – and therefore no beneficial interest in that right...