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Application by Cron

Application by Cron

Case [2020] NZHC 1074 21 May 2020

Jurisdiction

Incapacitated Person

Litigation Guardian

Enduring Power of Attorney

Unconscionability

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000185

[2020] NZHC 1074

IN THE MATTER of Part 19 of the High Court Rules and Rule 4.35

IN THE MATTER

of an application by PENELOPE JEAN CRON for appointment as litigation guardian for Warner James Mauger

Hearing: Determined on the papers

Counsel:

S P Rennie for Applicant

Judgment:

21 May 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 21 May 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

An application by PENELOPE JEAN CRON for appointment as litigation guardian for Warner James Mauger [2020] NZHC 1074 [21 May 2020]

[1]The applicant applies for orders:

(a)granting her leave to bring this proceeding by way of originating application; and

(b)appointing her as litigation guardian for her father, Warner James Mauger (Mr Mauger), in a proposed proceeding to be brought by Mr Mauger against Simon Michael Tucker and Louise Coranetta Hermansson.

Background

[2] Mr Mauger is an 85 year old widower. The applicant is his daughter. Pursuant to the Protection of Personal and Property Rights Act 1988 (PPPRA), Mr Mauger granted an enduring power of attorney:

(a)dated 31 August 2016 in relation to his personal care and welfare to the applicant as successor attorney (succeeding her mother who died in 2018); and

(b)dated 27 March 2019 in relation to property to the applicant and her brother Stephen Warner Mauger (Stephen).

[3] Mr Mauger has had a successful working life. However, he has suffered a significant deterioration in his mental health in recent years. Mr Mauger is suffering from a dementing illness that will continue indefinitely and he is incapable of managing his personal and property affairs. His memory and judgement are significantly impaired, and he lacks capacity to foresee the consequences of both making and failing to make decisions.

[4] Dr Colin Peebles, a psychiatrist specialising in elder persons’ mental health, has given certificates dated 3 November 2019 of mental incapacity under the PPPRA in respect of Mr Mauger.

[5] In January 2019, Mr Mauger made payments, purportedly as gifts, to Simon Michael Tucker and Louise Coranetta Hermansson in the sums of $550,000 and
$485,000 respectively. Mr Tucker and Ms Hermansson were employees of a company owned by Mr Mauger’s family interests.

[6] The payments were made after Mr Mauger was seen by a General Practitioner on 7 January 2019, who gave a certificate that Mr Mauger was of sound mind. Despite giving that certificate the doctor was aware of Mr Mauger’s deteriorating health but was not aware of the reason the certificate was being sought. He has written to the applicant that he would not have issued the certificate had he been so aware.

[7] The applicant intends that Mr Mauger shall take proceedings against Mr Tucker and Ms Hermansson to set aside the payments on the ground of unconscionability. A draft statement of claim setting out the claim that will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Cron

Details

AGLC: Application by Cron [2020] NZHC 1074
Case: [2020] NZHC 1074
Decision Date: 21 May 2020

CaseChat Overview and Summary

Penelope Jean Cron, daughter of Warner James Mauger, has applied to the High Court of New Zealand for the appointment as a litigation guardian for Mr Mauger. Mr Mauger is 85 years old and has a dementing illness which has left him incapable of managing his personal and property affairs. Dr Colin Peebles, a psychiatrist specialising in elder persons’ mental health, has given certificates dated 3 November 2019 of mental incapacity under the Protection of Personal and Property Rights Act 1988 in respect of Mr Mauger. Ms Cron intends to take proceedings against Simon Michael Tucker and Louise Coranetta Hermansson on Mr Mauger’s behalf to set aside payments made to them in January 2019 on the ground of unconscionability. Ms Cron holds an enduring power of attorney in relation to Mr Mauger’s personal care and welfare, but it is unclear whether the holder of such a power of attorney can conduct proceedings on behalf of an incapacitated person.

The court was required to decide whether an attorney, with general authority under the Protection of Personal and Property Rights Act 1988 to act on a donor’s behalf in relation to the whole of the donor’s property, is a litigation guardian pursuant to (a)(i) of the definition of litigation guardian under rule 4.29 of the High Court Rules 2016. The court also had to consider whether it was appropriate to appoint Ms Cron as Mr Mauger’s litigation guardian under rule 4.35 of the High Court Rules 2016.

The court found that an attorney with general authority under the Protection of Personal and Property Rights Act 1988 to act on a donor’s behalf in relation to the whole of the donor’s property is a litigation guardian, pursuant to (a)(i) of the definition of litigation guardian under rule 4.29 of the High Court Rules 2016. However, there is a further complicating factor, as there is serious doubt Mr Mauger had capacity to grant Ms Cron and her brother an enduring power of attorney in relation to property. The evidence and draft court proceedings plainly put Mr Mauger’s capacity in issue at that time and earlier. The court was satisfied that it was appropriate to appoint Ms Cron as Mr Mauger’s litigation guardian under rule 4.35 of the High Court Rules 2016.

The court granted leave to Ms Cron to commence this proceeding by way of originating application and appointed her as Mr Mauger’s litigation guardian under rule 4.35(2) of the High Court Rules 2016 to take and conduct court proceedings in his name and on his behalf against Simon Michael Tucker and Louise Coranetta Hermansson. The court also reserved leave for Ms Cron to further apply in respect of any matter arising from this judgment.

Orders