Beric v Eady - [2021] NZHC 1755

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000879

[2021] NZHC 1755

IN THE MATTER of the estate of DIANA MAITLAND EADY

AND

a trust settled by Roy Granville McElroy on 12 March 1965 known as the Diana M Eady Family Trust and the ECI Trust

BETWEEN

PETER BERIC as beneficiary of the estate of Diana Maitland Eady suing derivatively on behalf of the estate

First Plaintiff

PETER BERIC suing in his personal capacity

Second Plaintiff

AND

OLAF GUY EADY, JOANNA MAITLAND CHAPLIN EADY and SIMON HOLM

EADY as the executors and trustees of the estate of the late Diana Maitland Eady
First Defendants

Contd/2

Hearing: 17 June 2021

Appearances:

V Bruton QC and P Brown for Plaintiff A J Steele for First Defendants

Judgment:

13 July 2021

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 13 July 2021 at 4:00 pm
pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

BERIC v EADY [2021] NZHC 1755 [13 July 2021]

OLAF GUY EADY, JOANNA MAITLAND CHAPLIN EADY and
SIMON HOLM EADY in their capacity as trustees of the Diana M Eady Family Trust
Second Defendants

OLAF GUY EADY, JOANNA MAITLAND CHAPLIN EADY and
SIMON HOLM EADY in their capacity as recipients of the assets of the Diana M Eady Family Trust on or about 3 April 2017
Third Defendants

OLAF GUY EADY, JOANNA MAITLAND CHAPLIN EADY and
SIMON HOLM EADY in their capacity as trustees of the ECI Family Trust Fourth Defendants

[1] This proceeding has been set down for a 10-day hearing commencing on 30 August 2021. On 26 May 2021, the plaintiff filed an interlocutory application challenging privilege claims made by the first defendants as the executors and trustees of the estate of the late Diana Maitland Eady (the deceased). The plaintiff is the former de facto partner of the deceased. The first defendants are the three children of the deceased. The three children are also named as the second, third and fourth defendants in different capacities. I heard argument on the application on 17 June 2021.

Factual background

[2] The plaintiff was in a de facto relationship with the deceased for 32 years from 1986 until her death in 2018. The plaintiff shared an apartment (Highpoint) with the deceased in Parnell and a holiday home in Rāwhiti in Northland. Within weeks of the deceased’s death, the deceased’s three children, in their capacity as trustees of the ECI Family Trust, changed the locks on the Highpoint apartment, effectively evicting the plaintiff, and served trespass notices on him in relation to both Highpoint and Rāwhiti.

[3] In this proceeding, the plaintiff alleges that the defendants embarked on an improper scheme to deprive him of any property, for their own personal benefit. The plaintiff says he made contributions to the trust wealth and is entitled to provision from it.

[4] At issue is the discoverability of the contents of estate planning files held by…

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 Beric v Eady

Details

AGLC: Beric v Eady [2021] NZHC 1755
Case: [2021] NZHC 1755
Decision Date: 13 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Beric v Eady was heard on 17 June 2021. The plaintiff, Peter Beric, is the former de facto partner of the deceased, Diana Maitland Eady. He filed an interlocutory application challenging the privilege claims made by the first defendants, the three children of the deceased, who are also the executors and trustees of the estate of the deceased. The plaintiff alleged that the defendants embarked on an improper scheme to deprive him of any property, for their own personal benefit. The issue at hand was the discoverability of the contents of estate planning files held by solicitors Martelli McKegg, relating to the period from 2012 to the deceased’s death in 2018. The first defendants claimed solicitor/client privilege for almost the entirety of the estate planning files.

The court considered the challenge to the first defendant's privilege claims under r 8.25 of the High Court Rules 2016. The plaintiff argued that the blanket claim for privilege was improper, and that the documents should be disclosed due to the nature of their content and the circumstances in which they came into the defendants' possession. The court determined that the documents were subject to privilege by virtue of s 54 of the Evidence Act 2006, as they were intended to be confidential and made in the course of and for the purpose of the deceased receiving legal services. The court also found that there was no blanket claim for privilege, and that the defendants had not waived their privilege by disclosing certain documents.

The court dismissed the plaintiff's application to set aside the privilege claimed in categories C, J, K of the first defendant's affidavit of documents sworn 8 March 2021. The court held that the information the plaintiff sought was not generated by the first defendants as executors of the deceased’s estate, but by the deceased herself when she was alive. Therefore, the documents do not relate to the deceased’s estate because the estate was not in existence when the documents were created. The court found that the joint interest exception did not apply in this case as there was no will trust in existence until the deceased died.

In conclusion, the court dismissed the plaintiff's application, and costs were to follow the event. If the parties could not agree on costs, memoranda were to be filed within one month of the date of this judgment.

Orders