Bangma v Bangma - [2020] NZHC 2080

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000155

[2020] NZHC 2080

IN THE MATTER of claims of breach of fiduciary duty and duty of care by the trustees and executors of the estate of JACOB BANGMA

BETWEEN

JOHN CHARLES ANDREW BANGMA

Plaintiff

AND

PAUL MARTIN DAVID BANGMA and MICHAEL JOHN FRENCH

Defendants

Hearing: Determined on the papers

Counsel:

B Nevell and S M D Guest for Plaintiff

J R Pullar and A E Kennerley for first-named Defendant C Milne for second-named Defendant

Judgment:

18 August 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 18 August 2020 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BANGMA v BANGMA [2020] NZHC 2080 [18 August 2020]

The application

[1] The plaintiff applies for further and better discovery from the defendants under r 8.19 High Court Rules 2016 and also challenges claims to privilege made by the defendants in their affidavits of documents. The application is opposed.

The claim

[2] The plaintiff, John Bangma (John), and the first-named defendant, Paul Bangma (Paul), are brothers. Their father died in 2011 leaving a will dated 4 August 1999. The defendants, Paul and Michael French, a retired solicitor and formerly with the firm Corcoran French, are executors and trustees under the will. John and Paul are the residuary beneficiaries under the will.

[3] From an early stage conflicts arose between John and Paul in relation to the administration of the estate. Here, John alleges various breaches of fiduciary duty by the defendants. The breaches include the failure to distribute the estate in a timely manner, refusing to make interim distributions and failing to act in the best interests of the beneficiaries. Broadly, John considers Paul has acted in his own interests in matters concerning the estate and that Mr French allowed this to occur. Substantial damages are sought.

[4] The parties were ordered to provide standard discovery. Affidavits of documents have been filed. John alleged the defendants’ affidavits of documents were substantially incomplete which resulted in this application for further and better discovery. In addition, John challenges privilege claims by the defendants for emails and letters between Paul and Mr Martin Bell of Corcoran French. Privilege is claimed on the basis the documents are communications between Paul as a beneficiary and Corcoran French as his legal advisors.1

[5] John’s application sought particular discovery relating to 14 categories of documents. The application was set down to be heard on 4 August 2020. On 3 August 2020, Mr Nevell filed a memorandum stating the application was not pursued except

1 Evidence Act 2006, s 54.

in relation to only some of the documents in categories a, c, and d of the application. A challenge to the claim to privilege in respect of some documents in category g of the application was maintained also.

Categories a, c and d

[6] I do not need to describe the documents…

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 Bangma v Bangma

Details

AGLC: Bangma v Bangma [2020] NZHC 2080
Case: [2020] NZHC 2080
Decision Date: 18 August 2020

CaseChat Overview and Summary

The plaintiff, John Bangma, sought further and better discovery from the defendants, Paul Bangma and Michael French, and challenged claims to privilege made by the defendants regarding certain documents. The defendants opposed the application. The case revolved around the administration of the estate of Jacob Bangma, who passed away in 2011. John and Paul Bangma are the residuary beneficiaries under the will. John alleged that the defendants breached their fiduciary duties and duty of care in administering the estate. The defendants claimed legal professional privilege over certain documents, arguing they were communications between Paul as a beneficiary and Corcoran French as his legal advisors.

The court examined whether the plaintiff's application for further and better discovery was valid and whether the defendants' claim to privilege was justified. The court found that the documents sought in categories a, c, and d were not relevant to the matters currently in issue before the court, and therefore, an order for further and better discovery could not be made. The court also found that the defendants were entitled to claim privilege for the documents in category g, as they were communications between Paul and Corcoran French in his capacity as a beneficiary, and not as a trustee. The court required the defendants to produce the documents in question for inspection before making a final decision on the claim to privilege.

The court dismissed the application for further and better discovery in relation to categories a, c, and d and reserved its decision on the claim to privilege for documents in category g pending inspection of the documents. The court ordered the defendants to produce the documents in question for inspection within 21 days. Costs were reserved pending the final resolution of the application.

Orders