Beric v Eady - [2021] NZHC 419

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000879

[2021] NZHC 419

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

First Plaintiff, as beneficiary of the estate of DIANA MAITLAND EADY

PETER BERIC
Second Plaintiff

AND

OLAF GUY EADY, JOANNA MAITLAND CHAPLIN EADY and SIMON HOLM

EADY, as executors and trustees of the estate of DIANA MAITLAND EADY First Defendants

OLAF GUY EADY, JOANNA MAITLAND CHAPLIN EADY and SIMON HOLM

EADY, as trustees of the DIANA M EADY FAMILY TRUST

Second Defendants

OLAF GUY EADY, JOANNA MAITLAND CHAPLIN EADY and SIMON HOLM

EADY, 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, as trustees of the ECI FAMILY TRUST

Fourth Defendants

BERIC v EADY & ORS [2021] NZHC 419 [8 March 2021]

Hearing: On the papers

Judgment:

8 March 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

Introduction

[1] This is estate litigation. In a sixth amended statement of claim of September 2020, Mr Beric, the plaintiff, and the former de facto partner of the deceased, Ms Diana Eady, claims against her estate in his capacity as beneficiary (said to be entitled to sue derivatively). His claims include those brought under the Property (Relationships) Act 1976 and the Family Protection Act 1955.

[2] Mr Beric has objected to the admissibility of some of the affidavit evidence filed on behalf of the defendants.

[3] Each of the deponents is a long-standing friend of Ms Eady’s. Their evidence deals with the issue of the relationship between Mr Beric and Ms Eady, and whether their relationship had ended prior to her death. Mr Beric contends that many of the offending paragraphs in the affidavits are speculation, inadmissible opinion, and argumentative.

[4] By consent, I am determining the admissibility objections on the papers, following receipt of written submissions from the parties.

Relevant legal principles

[5]Rule 9.7(4) of the High Court Rules 2016 provides, relevantly, that every brief:

(a)must be in the words of the witness, and not in the words of the lawyer involved in drafting the brief;

(b)must not contain evidence that is inadmissible in the proceeding;

(c)must not contain any material in the nature of a submission;

(d)must avoid repetition; and

(e)must be confined to the matters in issue.

[6] The key purposes of the Evidence Act 2006 include promoting fairness to parties and witnesses, and avoiding unjustifiable expense and delay.1

1 Sections 6(c) and (e).

[7] Sections 7 and 8 of the Evidence Act 2006 are “the legislative gateway to the admissibility of evidence”.2 They provide:

7Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is –

(a)inadmissible under this Act…

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.

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Details

Case: [2021] NZHC 419
Decision Date: 8 March 2021

CaseChat Overview and Summary

In Beric v Eady, the High Court of New Zealand dealt with objections to the admissibility of certain affidavit evidence in estate litigation concerning the estate of Diana Maitland Eady. The plaintiff, Peter Beric, challenged the admissibility of affidavits filed by the deceased's friends, arguing that the statements contained speculative, argumentative, and inadmissible opinion evidence. The court had to determine whether the evidence was relevant and admissible under the Evidence Act 2006 and the Family Court Act 1980. The court found that the observations and understandings of the deceased's friends were critically relevant to the issues at hand, particularly the nature of the relationship between Beric and Eady and whether it had ended before her death. While some of the objections raised by Beric had some merit, the court was cautious not to prematurely exclude evidence that might be seen as admissible at trial. The court concluded that the objections to admissibility should be rejected and that the determination of the admissibility of the contested evidence should be left to the trial judge. The objections were dismissed without prejudice and subject to any further order of the trial judge.

The court's decision was based on the importance of allowing the trial judge to assess the evidence in its entirety and the potential for the exclusion of evidence at this stage to prejudice the fair and efficient determination of the proceedings. The court noted that in family proceedings, witnesses often express emotional and strongly held views, and it was not appropriate to exclude such evidence at the preliminary stage. The court also highlighted the need to avoid the risk of promoting a "like-for-like" response by allowing inflammatory affidavits to be read. The court found that the statements in question, while perhaps speculative or argumentative, were not so inflammatory or significant that they would risk promoting an inappropriate expansion of the factual issues. The court's decision balanced the need for fairness and efficiency in the proceedings with the importance of allowing relevant evidence to be presented to the trial judge.

Orders