Bloss v Van der Goot - [2019] NZHC 1360

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1997

[2019] NZHC 1360

BETWEEN
JUSTINA SOPHIA BLOSS

as executrix of the Estate of CLASINA VAN DER GOOT

Plaintiff

AND

AGE VAN DER GOOT

First Defendant

DUTCH VILLAGE TRUST

Second Defendant

FAM-2019-090-107 and 108

BETWEEN

AGA VAN DER GOOT
Plaintiff

AND

JUSTINE SOPHIA BLOSS

Defendant

Hearing: 13 June 2019

Appearances:

E J Grove for the Plaintiff

U Patel for the First Defendant
M N Tolich for the Second Defendant

Judgment:

13 June 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Davenports West (N Craig), Henderson, Auckland, for the Plaintiff Muller Law (S A Inglis), Pakuranga, Auckland, for the First Defendant
Corban Revell (M N Tolich), Henderson, Auckland, for the Second Defendant

Copy for:
Chris Patterson Barrister Ltd (C J Patterson/E J Grove), Auckland, for the Plaintiff Usha Patel, Auckland, for the First Defendant

JUSTINA SOPHIA BLOSS v AGE VAN DER GOOT [2019] NZHC 1360 [13 June 2019]

[1] Today I have heard applications for discovery. First, I give the background to the proceeding. The facts pleaded in the statement of claim provide a suitable context.

[2] The plaintiff, Justina Sophia Bloss, is the executrix of the estate of her mother, Clasina Van der Goot, who died in 2011. The first defendant, Age Van der Goot, was in a relationship with Clasina Van der Goot, and they married in 1994. The marriage ended with the death of Clasina in 2011. The second defendant is the Dutch Village Trust, a charitable trust which runs a retirement village in Henderson.

[3] In 1988, Clasina and her then husband, William Townsend, bought an occupation licence for a unit in the retirement village. Under a written agreement, they had the right to occupy the unit. The licence would expire when their survivor died. The right to occupy would be sold. The Village Trust would take 10 per cent of the sale proceeds, and the rest would be paid to the estate of the survivor. They started living in unit 54 but later moved into unit 55. Clasina’s husband died in June 1989 and the right to occupy the unit vested in Clasina solely by survivorship. Sometime afterwards, Clasina entered into a relationship with Age Van der Goot. He moved in to live with her. They married in July 1994. In her will of 2001, Clasina gave Age the right to live in unit 55 during his lifetime and upon his death the proceeds of sale of the occupation licence would go into the residue of her estate. She left the residue to Justina, the plaintiff.

[4] The statement of claim pleads that the Trust advised Clasina and Age that it had lost the original licence for unit 55 and sent a replacement copy. That showed Clasina and Age as joint licensees. Clasina and Age signed and returned an acknowledgment. Clasina died in January 2011. Probate of her will was granted on 17 February 2011. Age…

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 Bloss v Van der Goot

Details

AGLC: Bloss v Van der Goot [2019] NZHC 1360
Case: [2019] NZHC 1360
Decision Date: 13 June 2019

CaseChat Overview and Summary

In the case of Bloss v Van der Goot, the High Court of New Zealand, Auckland Registry, was tasked with resolving disputes surrounding the estate of Clasina Van der Goot, who passed away in 2011. Justina Sophia Bloss, as the executrix of Clasina's estate, sued Age Van der Goot, her former stepfather, for unjust enrichment, alleging that he had unlawfully occupied a unit in a retirement village. Additionally, she sued the Dutch Village Trust for breach of contract, claiming they failed to pay the proceeds of sale of the unit to the estate. Age, in turn, initiated proceedings in the Family Court, seeking an extension of time to exercise Option A under the Property (Relationships) Act 1976 and to bring a claim under the Family Protection Act 1955. The court was required to decide on the scope of discovery in this complex relationship property matter and whether certain claims to privilege should be set aside.

The court examined the principles of discovery in relationship property proceedings, emphasizing the need for a robust yet not unduly onerous approach that aligns with the purposes of the Act, including inexpensive and efficient access to justice. The court noted the importance of tailoring the scope of discovery to the needs of the court and ensuring it is reasonably necessary and not disproportionate. The court also highlighted the specific dynamics of relationship property litigation, where the focus is on the assets as they stood at the time of the triggering event, such as death. The court found that while certain discovery requests were relevant and necessary, others were either irrelevant or disproportionate. For instance, the court dismissed the request for extensive financial records from the 1990s as irrelevant and disproportionate, given the length and nature of the relationship. However, it allowed for the disclosure of bank statements around the time of Clasina’s death, considering it necessary for the proceedings.

Regarding the claim to set aside the privilege on certain documents, the court held that there was no evidence to suggest the communications were made for a dishonest purpose. The court found that the request for payment of the proceeds of sale was made by lawyers in good faith and did not indicate any dishonesty on the part of Age or his representatives. Therefore, the court denied the application to set aside the privilege claim.

The court ordered that Justina, as executrix, should provide an assets and liabilities statement and disclosure of bank statements for the six months before Clasina’s death to check for any dispositions of property. The court also directed that efforts should be made to retrieve files held by Mr. John McIntosh, who had acted for both Age and the Dutch Village Trust. Regarding costs, the court ordered that the plaintiff pay the costs of the first defendant, with costs for the second defendant to be resolved later.

Orders