ALICIA MARIE ELIZABETH HALL AND NICHOLAS CHARLES EMMANUEL HALL as Executor and Trustee of the Estate of Monique Marie Julia Alicia Hall

[2024] NZHC 2949

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2278

[2024] NZHC 2949

IN THE MATTER

of the Estate of Monique Marie Julie Alicia Hall

BETWEEN

ALICIA MARIE ELIZABETH HALL

Plaintiff

AND

NICHOLAS CHARLES EMMANUEL

HALL as Executor and Trustee of the Estate of Monique Marie Julia Alicia Hall Defendant

AND

IAN FRANCOIS MELLETT

Interested Party

Hearing:	9 October 2024
Appearances:	K M Muller for Plaintiff A A H Low for Defendant
Judgment:	10 October 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 10 October 2024 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

HALL v HALL [2024] NZHC 2949 [10 October 2024]

[1]    The plaintiff and the defendant are siblings, and this litigation concerns the estate of their late mother, Monique Marie Julie Alicia Hall. The plaintiff is seeking orders recalling or revoking probate of Monique’s last will of 18 March 2016 and granting probate of her previous will dated 18 December 2006 and codicil dated      5 February 2014.

[2]    The plaintiff obtained an order for pre-commencement discovery, and since the proceeding was filed there have been long-running disputes concerning the defendant’s discovery and whether he has complied with his obligations in this regard. The application presently before me was made by the plaintiff in March 2024 for an order for particular discovery against the defendant under r 8.19 of the High Court Rules 2016 (the Rules).

[3]    Since the application was filed, the defendant has engaged new counsel, and rather than oppose the plaintiff’s application the defendant filed a substantial fourth affidavit of documents. This was intended to address, as far as possible, all the issues that had been raised by the plaintiff challenging the defendant’s discovery. The fourth affidavit has not entirely achieved that objective but when the application was called before me Ms Muller identified only four matters that need to be addressed, all within a narrow scope.

[4]    Ms Low appeared for the defendant and confirmed that the defendant abides but she was attending to assist the Court. She said it is the defendant’s intention to comply with any directions the Court may make upon the application.

[5]Ms Muller identifies the following matters that remain in issue:

(a)Part 4 of the defendant’s fourth affidavit of documents is said to be equivocal in that it refers to documents “formerly held by LifeWise” and because it contains no statement to the effect that the defendant is not aware of any other documents in this category at the date of swearing the affidavit.

(b)In respect to the Lifewise documents, the defendant refers to communication books but not medication books and fails to identify the supervisor who made quarterly visits who may have removed documents from Monique’s Fancourt St property.

(c)In respect to documents formerly held by Wilson McKay which are said to have been lost or destroyed, the defendant has not followed up on a request made that Wilson McKay provide details of the precise steps taken to recover its electronic records or for its responses to the queries raised by Mr Connor to Melissa Allan in his letter of 31 August 2023, or advised of any response received from Wilson McKay nor disclosed any further documents recovered. In addition, the plaintiff requires Wilson McKay to be asked to explain how the deletion of Ms De La Mare’s email account could result in the deletion of other documents such as PDF files.

[6]    In respect to these matters, and without opposition, the following orders are made. The defendant shall within 21 days of the date of this judgment file a further affidavit in which he shall confirm that:

(a)he is not aware of any documents that have not been discovered that are no longer in his control, but in the event that there are such documents he is to state when such documents ceased to be in his control and the persons who now have control of them (to the best of his knowledge);

(b)the documents that are no longer in his control include the Lifewise medication books and (to the best of his knowledge) the identity of the supervisor who made quarterly visits to Monique; and

(c)he or his solicitors have enquired further of Wilson McKay to provide responses to the matters in [5(c)] above, and provide the details of those responses and disclosure of any further documents obtained.

[7]    In relation to costs, the plaintiff’s position is that she is entitled to costs because the application was necessary as the defendant’s prior affidavits of documents did not comply with his discovery obligations, the application has resulted in the defendant providing a more comprehensive affidavit and further orders have been made. The plaintiff says it is no answer that the defendant has chosen now to abide the Court’s decision because the defendant forced her to make the application.

[8]    I was referred to the minute of Woolford J awarding the plaintiff costs on her pre-commencement discovery, where he said:1

[10] From this correspondence, it appears that the intending plaintiff was justified in thinking that information would not be provided prior to commencement of the proceedings except by means of a Court order. The fact that the intended defendant then consented “on a pragmatic basis” does not call into question the necessity for such an application.

[9]    For the defendant, Ms Low says the defendant’s position has always been that he would respond to any requests for discovery that were made and that the application was unnecessary and there should therefore be no order for costs.

[10]   The defendant’s previous affidavits of documents did not comply with the requirements of the Rules in all respects. It is the case that once Ms Low became involved, she suggested the parties adopt a more circumspect approach to discovery. However, it is also the case that in important respects, such as in relation to the Wilson McKay and Lifewise issues, she did not accept there was anything further the defendant was required to do. I consider it was not unreasonable for the plaintiff to take the view from the correspondence between the lawyers that there were matters which would only be resolved by the Court.

[11]   I also consider that the application has served a useful purpose. It has addressed inadequacies in the defendant’s previous affidavits; set out comprehensively steps taken by the defendant to locate relevant documents; and has resulted in further directions, including in respect to Wilson McKay, that the defendant take steps that may provide further relevant documents and which I consider should have been taken before now.

1      Hall v Hall HC Auckland CIV-2021-404-2278, 31 May 2022.

[12]   In terms of costs principles, I consider the plaintiff has been the successful party and is entitled to costs.

Result

[13]   The plaintiff’s application is successful and there shall be directions as in [6] above.

[14]   The plaintiff is entitled to costs on a category 2 basis. Counsel shall confer as to the quantum of costs and if there is any disagreement they may refer the matter back to the Court by way of memorandum within 21 days.

[15]   Counsel advise that the case is already set down for trial next year and no further directions are required.

O G Paulsen Associate Judge

Solicitors:

DB Law, Auckland

Patterson Hopkins Lawyers, Auckland