Beric v Eady
[2021] NZHC 419
•8 March 2021
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 PlaintiffAND
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 or any other Act; or
(b)excluded under this Act or any other Act.
(2)Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
8General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will –
(a)have an unfairly prejudicial effect on the proceeding; or
(b)needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
[8] In Right to Life New Zealand Inc v Abortion Supervisory Committee, Ronald Young J excluded affidavits that contained highly emotive descriptions that made serious allegations of misconduct, which if allowed to be read, would probably lead to inappropriate expansion of the factual issues:3
[52] Although said to be essential background material, the affidavits also contain, in places, a highly emotional description of events. I accept that these descriptions reflect the experiences of the women involved. However, this “background” material is not relevant. It does, however, contain an atmosphere in this litigation which compels a “like” response. There are also a number of allegations made in the affidavits of what could be categorised as criminal conduct by others. If the affidavits are to be allowed to be read then understandably those accused will wish to respond. This will inevitably widen this litigation well beyond its current focus.
2 Green v Green [2014] NZHC 1991 at [4].
3 Right to Life New Zealand Inc v Abortion Supervisory Committee HC Wellington CIV-2005-485-999, 28 May 2007.
[9] The concern that inflammatory affidavits tend to provoke a like-for-like response was addressed by McGechan J in Donovan v Graham:4
The situation which counsel for Customs faces is a common enough forensic dilemma. Affidavits have been received which he considers contain inadmissible material, including some of an argumentative and even provocative nature. One option is to disregard that considered inadmissible, relying upon ability to submit at trial that such should be ruled out. That approach has its difficulties. First, it is not always readily acceptable to lay clients, who in matters in which they are emotionally involved see a need to meet fire with fire. Secondly, it presupposes counsel’s view as to admissibility will be upheld in the absence of evidential response will not prove material. The other option is to meet like with like, and argument with argument, the easier and seemingly safer course. This latter approach has become increasingly common in recent years, to a point where affidavits have been increasingly voluminous and argumentative. [ …
] The Judge must bear in mind risks involved in premature exclusion of evidence which on the more fully informed basis emerging at trial might be seen as admissible. [The Judge] must keep in mind the desirability of the case being kept within bounds, and open to efficient disposal. It is important affidavits not be allowed to mushroom, with irrelevance piled upon irrelevance, accusation upon accusation, and with the parties becoming increasingly and unproductively inflamed.
(emphasis added)
[10] In Parihoa Farms Ltd v Rodney District Council, Duffy J noted the responsibility of counsel to ensure the exclusion of clearly inadmissible evidence:5
… when there has been a culmination of transgressions which through sheer weight of numbers come to weigh in favour of … pre-trial disposition … coupled with the failure on the part of counselpreparing the evidence to recognise that it has gone beyond what is tolerable, the opposing party has no real alternative but to seek direction of the Court.
Background
[11] The affidavits at issue are those of the following deponents, all contemporaries of the deceased, Diana Eady (ie, now in their late 70s or early 80s): Christine Horton, Sandra Pedersen, Diana Fenwick, Pip Gower and Angela Ashley Wilson (all sworn between 29 and 30 October 2020).
4 Donovan v Graham (1981) 4 PRNZ 311, at 313.
5 Parihoa Farms Ltd v Rodney District Council (2010) 20 PRNZ 8 (HC) at [5].
[12] The affidavits are in almost exactly the same form as those filed originally in the Family Court some two years ago, and for which the defendants obtained leave to rely upon in this Court.6
[13] Attached marked ‘Schedule A’ is the schedule from the plaintiff’s submissions which refer to the relevant paragraphs of the affidavits that are objected to, and the reasons for the objection.
[14] The following paragraphs give some sense of the flavour of the evidence to which Mr Beric objects:
(a)Affidavit of Sandra Gay Pedersen, sworn 29 October 2020:
(i)At paragraph 8:
Diana [Ms Eady] appeared trapped, she did not have the strength to force Peter [Mr Beric] to leave given her health and I realised that he was bullying her and had taken control of her life. Just one example is his refusal to let hospice become involved with Diana. Peter has a fanatical dislike of hospice and this means he prevented Diana from involving hospice which meant she did not get help and relief from the all-enveloping nausea that was constantly with her … I was so shocked to realise that his own needs were put well ahead of Diana’s, and that he didn’t want Diana to contact hospice. Hospice help would have gone a long way to making Diana’s life more tolerable in her last 12 months but Peter did not want that as I suspect that would have taken his control away.
(ii)Then, at paragraph 9:
I must say I felt it was more than generous, as Diana had financially supported Peter for many, many years.
(b)Affidavit of Diana Ramsay Fenwick, sworn on 29 October 2020:
(i)At paragraph 6:
… However my husband and I were aware that they remained separated, despite Peter’s attempts to suggest otherwise. I am aware that Peter is now trying to claim that he and Diana reconciled before she died – but this is not my understanding at all. I understood it was status quo – they were separated but lived under the same roof.
6 Beric v Eady HC Auckland CIV-2020-404-879 (Minute of Associate Judge Bell, 10 August 2020) at [1](b).
(ii)Then, at paragraph 7:
… I heard an episode of what I considered Peter “bullying” Diana … and realised just how “pushy” Peter had become towards Diana in her later years.
(c)Affidavit of Pip Gower, sworn on 30 October 2020:
(i)At paragraph 10:
… Quite frankly, as a very private person I think she was trying to maintain a ‘business as usual’ front rather than face the consequences of publicly forcing Peter to move out of Highpoint. Perhaps Di saw a separation becoming public and discussed by her circle of friends as something she wanted to avoid.
Analysis and decision
[15] I agree with the general submission of the defendants that the observations and understandings of the deceased’s closest friends and confidantes is critically relevant to matters at issue. As noted above, the clear intent of the evidence is to address the issue of the relationship between Mr Beric and Ms Eady and whether their relationship had ended prior to her death. I reject the principal submission of Mr Beric that the evidence challenged is of low probative value.
[16] The nature of these proceedings is important. In accordance with s 12A of the Family Court Act 1980, the Court hearing the critical Property (Relationships) Act 1976 claims is entitled to receive any evidence, whether or not admissible under the Evidence Act 2006. The test is whether or not the Court considers that the evidence may assist it to determine the proceedings.7
[17] Section 12A provides no excuse or justification for the filing of evidence that is not relevant. Evidence that is not relevant is always inadmissible or of no value. However, s 12A does allow for the admission of evidence that would otherwise be inadmissible hearsay or inadmissible on other grounds.
[18] Section 12A is of course a statutory recognition that in family proceedings of the kind here, technical objections to evidence should not hinder the fair and efficient determination of proceedings.
7 Family Court Act 1980, s 12(4).
[19] Mr Beric has objected to some statements in the affidavits on the grounds of relevance. However, in my view, there is little merit to his objection on that ground; the alleged offending paragraphs all provide context to the evidence of the deponent on the critical issues. The hearsay objection also lacks merit given the provisions of s 12A of the 1980 Act and the fact that Ms Eady is deceased.
[20] The further objections of Mr Beric, namely his claims that some of the paragraphs are argumentative, speculative and inadmissible opinion, are not wholly without merit, although some are of a very technical nature and it is difficult to understand what prejudice might arise from their inclusion (see for example, paragraph 3 of the affidavit of Sandra Gay Pedersen, which directly relates to the issue of the relationship between Mr Beric and Ms Eady). It is also difficult to understand the objection to the third sentence of paragraph 17 of Christine Horton (“due to my age and stage, I am increasingly frail).
[21] I am in no position to assess the veracity of the evidence (that of course is a matter for the trial Judge) but on the face of the documents they appear to be the authentic voice of the witness being, as I have noted, close friends and confidantes of the deceased. In the circumstances it would be surprising if the evidence was not somewhat emotional and expresses firmly held views. Rather than inadmissible opinion evidence, many of the offending paragraphs can in my view properly be regarded (or at least arguably so at this stage) as commonsense judgement based on the experience of seeing Mr Beric and Ms Eady as a couple over many years. I also fail to see how the question of the state of their relationship and whether it ended prior to death could be the subject of any real expert evidence.8
[22] The crucial issue that arises in relation to these admissibility objections is whether there is a real risk, at this stage, of the Court prematurely excluding evidence that on a more fully informed basis emerging at trial might be admissible. I am of the clear view that there is a real risk of that outcome in this case and the only sensible conclusion is to allow all objections to admissibility to be determined by the trial Judge.
8 See also s 24 of the Evidence Act 2006.
[23] As has been said on many previous occasions, evidence that is argumentative, speculative and improperly based on supposition is of little value and certainly not persuasive, and all trial Judges are well placed to deal with any issues arising out of concerns of that kind.
[24] I further find in this case that the statements objected to are not so inflammatory or the transgressions contended for so significant that in totality there is a real risk of promoting a “like-for-like” response. As I have noted, in family proceedings of this kind, witnesses will express emotional and strongly held views and, in my view, looking at matters at a preliminary stage, these are all very much matters of weight for the trial Judge.
[25] Even if on their face some of the statements at issue are inclining towards speculation or could arguably be said to be supposition, it would be wrong at this stage to exclude evidence that on a more informed basis emerging at trial might be seen as admissible.
[26] For all these reasons I find that the plaintiff’s objections to admissibility should be rejected.
Result
[27] The objections of the plaintiff, Mr Beric, to the admissibility of identified paragraphs in the affidavit evidence of the defendants, and as set out in the plaintiff’s memorandum of 13 November 2020, are dismissed, but without prejudice and subject to any further order of the trial Judge.
[28]I note that Mr Beric is legally aided. There will be no order as to costs.
Associate Judge P J Andrew
SCHEDULE A CHRISTINE HORTON, SWORN 29 OCTOBER 2020
Para ref Content Objection 2 Entire paragraph Speculation 3 Entire paragraph Speculation 8 Entire paragraph Supposition 12 “I felt the last year of Di’s life after she sked Peter to move out was hell for her” Argumentative opinion 13 Entire paragraph Speculation 15 Entire paragraph Irrelevant opinion 17 Third sentence Irrelevant opinion
SANDRA GAY PEDERSEN, SWORN 29 OCTOBER 2020
Para ref Content Objection 3 Entire paragraph Supposition 4 Entire paragraph Supposition and argumentative 5 “Many times I felt like saying tell him to get his own and
why are you so compliant”
Argumentative and
irrelevant
6 “In the last 18 months before Diana’s death I started to wonder if she was frightened of Peter” Argumentative and speculation 7 Entire paragraph Speculation and argumentative 8 “Diana appeared trapped, she did not have the strength to force Peter to leave given her health and I realised that he was bullying her and had taken control of her life. Just one example is his refusal to let hospice become involved with Diana. Peter has a fanatical dislike of hospice and this meant he prevented Diana from involving hospice which meant she did not get help and relief from the all-enveloping nausea that was constantly with her …
I was so shocked to realise that his own needs were put well ahead of Diana’s and that he didn’t want Diana to contact hospice. Hospice help would have gone a long way to making Diana’s life more tolerable in her last 12 months but Peter did not want that as I suspect that would have taken his
control away.”
Supposition and argumentative 9 “I must say I felt it was more than generous as Diana had financially supported Peter for many, many years.” Opinion 10 Entire paragraph Supposition /
argumentative
11 Entire paragraph Speculation,
argumentative,
opinion and irrelevant
DIANA RAMSAY FENWICK, SWORN 29 OCTOBER 2020
Para ref Content Objection 5 Entire paragraph Speculation 6 “However my husband and I were aware that they remained separated, despite Peter’s attempts to suggest otherwise. I am aware that Peter is now trying to claim that he and Diana reconciled before she died – but this is not my understanding at all. I understood it was the status quo – they were
separated but lived under the same roof.”
Speculation, hearsay and
argumentative
7 “What I considered to be Peter ‘bullying” Diana” … “and realised just how ‘pushy” Peter had become towards Diana in her later years” Opinion and speculation 8 Entire paragraph Irrelevant /
opinion
9 Entire paragraph Irrelevant / opinion 10 Entire paragraph (witness not present during the alleged
conversation)
Hearsay 11 “As far as I am aware it was made very clear to Peter many
times both before, and immediately prior to, Diana’s death that he would not get anything from her trust.”
Submission, speculation 13 “Different”, “but you never know what you will g et with Peter.” “Which seems off since I and many others knew they
had separated.”
Irrelevant and argumentative 14 Entire paragraph Opinioin
PIP GOWER, SWORN 30 OCTOBER 2020
Para ref Content Objection 7 Entire paragraph Speculation 8 Entire paragraph Speculation 9 Entire paragraph Irrelevant 10 “Except when she was particularly fearful” Argumentative and speculation 10 “Quite frankly, as a very private person I think she was
trying to maintain ‘a business as usual” front rather than face the consequences of publicly forcing Peter to move out of Highpoint. Perhaps Di saw a separation becoming public
and discussed by her circle of friends as something she wanted to avoid.”
Irrelevant, speculation 11 Entire paragraph Irrelevant, speculation 12 “It was obvious to me that she was very unhappy and I believe she felt that Peter was a threat to her … I know she asked another owner in the building what she should do and how to go about getting Peter out of the apartment, as her
friend had been a priest.”
Argumentative, hearsay, speculation
ANGELA MARGARET ASHLEY-WILSON, SWORN 30 OCTOBER 2020
Para ref Content Objection 4 Entire paragraph Speculation 5 Entire paragraph other than “She told me she and Peter were separating.” Speculation, hearsay, argument 6 Entire paragraph Speculation, irrelevant and argumentative 7 Entire paragraph Speculation 8 Entire paragraph Speculation, irrelevant 11 Entire paragraph Hearsay, argumentative and supposition
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