Barker v Barker

[2017] NZHC 2348

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2857 [2017] NZHC 2348

BETWEEN

WENDY CHARMAINE BARKER

Plaintiff

AND

WENDY CHARMAINE BARKER, FRANCES ANDREA BARKER AND THEONA ALEXANDRA ORMSBY AS TRUSTEES OF THE BARKER FAMILY TRUST

First Defendants

FRANCIS ANDREA BARKER Second Defendant

THEONA ALEXANDRA ORMSBY Third Defendant

WENDY CHARMAINE BARKR Fourth Defendant

Hearing:	26 September 2017
Appearances:	R B Hucker and R Selby for Plaintiff C A Murphy for Defendants
Judgment:	26 September 2017

JUDGMENT OF LANG J

[on application for further and better discovery]

This judgment was delivered by me on 26 September 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BARKER v BARKER [2017] NZHC 2348 [26 September 2017]

[1]      These two proceedings have been consolidated and are due to be the subject of a four-day trial commencing on 24 October 2017.   The parties are also due to attend a judicial settlement conference before the Associate Judge on 5 October

2017.

[2]      The proceedings involve a dispute by the three children of the late Gwenda Barker regarding the proceeds of sale of a property formerly owned by the Barker Family Trust, a trust established by Gwenda for the benefit of her children in 1996. Those monies are the only assets held by the trust for the benefit of the  three children.   In CIV-2016-404-730, Mrs Barker’s children Francis and Theona seek orders removing their sister Wendy as an executor and trustee of Mrs Barker’s estate and/or as a trustee of the Barker Family Trust.  In CIV 2016 404 2857, Wendy seeks an order that she is entitled to a greater share of the trust’s assets than her brother and sister.  One of the principal arguments Wendy advances in support of this claim is that she expended her own monies in renovating and improving the property that the trust formerly owned.

[3]      Issues have arisen in relation to the discovery provided by Wendy.   These relate to bank records that Francis and Theona believe may show that Gwenda and/or Gwenda’s  former  partner  Norman  Woods  may  have  funded  the  expenditure  in respect of which Wendy now seeks to be reimbursed by the trust.

[4]      Counsel have resolved several issues but the Court is required to determine one outstanding issue.  I deal first with the issues that have been resolved.

Matters that have been resolved

[5]      Counsel have agreed as follows:

(a)      All three executors of Gwenda’s estate are to execute a joint letter to Gwenda’s bank requesting copies of any and all bank records held by the bank in Gwenda’s name. If possible, the bank is to provide these documents within three working days.   The estate or the trust will presumably meet any costs charged by the bank as a result of this

request.   All parties are to be provided with a copy of the bank’s

response.

(b)It  has been  agreed that Wendy will, on  a confidential  counsel-to- counsel basis, provide details of all payments made out of her bank account that relate in any way to the property formerly owned by the trust.

(c)      In  addition, Wendy will  provide  details  from  her  bank  statements relating to any deposit into her bank accounts from Gwenda’s bank accounts or in respect of cash received from her mother.  In addition, she  will  provide  copies  of  any of  her  bank  statements  that  show deposits into her bank account that occur within seven days of a cash withdrawal being made from her mother’s bank accounts.

Outstanding issue

[6]      The outstanding issue relates to an application by Francis and Theona to obtain copies of the bank records of the late Norman Charles Woods, Gwenda’s partner.  Mr Woods died in February 2015, and Wendy is the executor of his estate. As a result, the records in question are documents within her control.  The applicants seek copies of Mr Woods’ bank records showing any payments Mr Woods may have made to either Wendy or Gwenda between 1 January 1989 and 28 February 2015.

[7]      Francis and Theona say the documents are relevant because they are entitled to challenge Wendy’s claim that she used her own monies to fund the improvements to the property.  They have already ascertained that unexplained cash withdrawals totalling approximately $57,000 were made from one of Gwenda’s bank accounts between December 2006 and April 2009.  They believe Wendy may have used some or all of this money to improve the trust’s property.  If that was the case, they will ask the Court to infer that it was Gwenda who effectively funded the improvements and not Wendy.

[8]      Francis  and  Theona  use  an  extension  of  this  argument  to  support  their application to obtain copies of bank statements held in the name of Mr Woods.  They

say that  Mr Woods  may have provided  Gwenda and/or Wendy with  funds that Wendy subsequently used to carry out the work for which she now wishes to be reimbursed by the trust.  This may assist them to refute Wendy’s claim that she used her own funds for that purpose.

[9]      Wendy resists the application on the basis that the records in question are irrelevant.  She says it does not matter where she obtained the funds that she used to improve her mother’s property.  Furthermore, the brief of evidence that Wendy has filed discloses that any monies she received from Mr Woods were gifts, and as such she contends they are plainly irrelevant to the issues the Court will be required to decide.

Decision

[10]     I do not consider that documentary evidence relating to payments that Mr Woods may have made to Gwenda will be of any relevance.  The discovery to which the parties have already agreed will confirm whether those payments were later used to fund cash withdrawals that found their way into Wendy’s bank accounts.

[11]     I consider, however, that Wendy should discover all bank records relating to any payments she may have received directly from Mr Woods from the date upon which he executed a power of attorney in her favour.  The reason those records may be relevant is that Francis and Theona are entitled to examine the possibility that Wendy used the power of attorney to obtain funds from Mr Woods’ bank accounts to meet the cost of improving the trust’s property.   Should that be the case, it would strengthen the defence case that Wendy did not fund all of those costs from her own resources.

[12]     The secondary relevance of such evidence arises from the fact that, as I

understand the position, Mr Woods left a bequest to Gwenda’s estate in the sum of

$50,000.  That bequest has not been paid in full because Mr Woods’ estate does not have the means to pay it.  If Wendy used the power of attorney to obtain funds that were used to improve the trust’s property, she may have done so at the expense of Gwenda’s estate of which she is an executor.  That in turn may be relevant to one of

the principal issues to be determined in CIV 2016 404 730, which is whether Wendy should be removed as a trustee of the estate.

[13]     I therefore direct Wendy to obtain copies of bank records showing any cash withdrawals from Mr Woods’ bank accounts, as well as those showing deposits from Mr Woods’ bank accounts directly to her bank accounts.   She is also to provide copies of her own bank statements showing any deposits into her accounts that occur within seven days of any cash withdrawal in the sum of $200 or more being made from Mr Woods’ accounts.

[14]     Counsel have leave to ask the Registrar to arrange a telephone conference before me or the Duty Judge should any further issue arise in relation to the implementation of the orders I have made and/or the issues in respect of which they have reached agreement.

[15]     Given the extent to which counsel have been able to reach agreement, my initial impression is that costs should lie where they fall at this stage.   If the proceedings are not resolved at the forthcoming judicial settlement conference, counsel have leave to file memoranda in relation to costs should that issue remain

unresolved.

Lang J

Solicitors/ Counsel:

Hucker & Associates, Auckland

Ross Holmes Lawyers, Auckland

C A Murphy, Auckland