Boswell v Korving
[2021] NZHC 3373
•9 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001876
[2021] NZHC 3368
IN THE MATTER of an application for probate in solemn form under Part 18 of the High Court Rules 2016 IN THE MATTER
of JOHN ELLIOTT LAWFORD, of
Auckland, Retired, Deceased
BETWEEN
DENISE JOY BALL, TIMOTHY JOHN LEWIS and ROBERT McDOUGALL FERRIER
Plaintiffs
AND
BELINDA BEVERLEY GWENDOLEN SAINT
First Defendant
Hearing: 1 December 2021 Appearances:
S A Grant for the Plaintiffs
A E McDonald for the First Defendant
D A Chambers QC and I J Beverwijk for the Third Defendant No appearance for the Second DefendantJudgment:
9 December 2021
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 9 December 2021 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
MacDonald Lewis Law, Auckland Paladin Chambers, Auckland Hesketh Henry, Auckland
Akarana Chambers, Auckland Glaister Ennor, Auckland
BALL & ORS v SAINT & ORS [2021] NZHC 3368 [9 December 2021]
AND JACK LEE PORUS and DAVID LUNNY
Second Defendant
AND MYLES CURLING LAWFORD
Third Defendant
Introduction and background
[1] On 27 October 2021 the plaintiffs applied for orders granting them probate in solemn form in respect of a will dated 18 April 2017 that was, on its face, properly executed by John Elliot Lawford (Mr Lawford) (2017 Will). Mr Lawford died on 12 June 2020.
[2] The first defendant (Ms Saint) and Mr Lawford married on 23 January 2010. They remained legally married at the time of Mr Lawford’s death; although by then the third-named plaintiff, Mr Ferrier, in his capacity as Mr Lawford’s attorney, had arranged for an application to be made to dissolve the marriage. That application was on foot but had not been determined when Mr Lawford died.
[3] The first defendant has lodged a caveat against the grant of probate to the plaintiffs in respect of the 2017 Will. She is defending the plaintiff’s claim and has filed a counterclaim. Her most recent pleading is a third amended statement of defence and counterclaim dated 14 October 2021 (3ASOD). The 3ASOD is 315 paragraphs long, but it contains only two affirmative defences and a one-sentence counterclaim. In summary, Ms Saint alleges that:
(a)Mr Lawford lacked testamentary capacity when he executed the 2017 Will;
(b)Mr Ferrier unduly influenced Mr Lawford to make the 2017 Will; and
(c)a will dated 6 November 2013 (2013 Will) is Mr Lawford’s last valid will.
[4] Under the 2013 will the first defendant (together with her adult son Mr Caughey) were to receive Mr Lawford’s valuable property in Mission Bay, Auckland (Mission Bay Property). The first defendant is not a beneficiary under the 2017 Will. Conversely, the 2017 Will provides for Mr Ferrier to receive a valuable painting, but he was not a beneficiary under the 2013 Will.
[5]These matters are set down for a seven-day trial in May 2022.
Other parties
[6]The second defendants are the named executors under the 2013 Will.
[7] The third defendant is Mr Lawford’s nephew (Myles). He is the residual beneficiary under each of the 2013 Will and the 2017 Will. The residual estate is materially larger under the 2017 Will because it includes the Mission Bay property. Myles does not oppose the plaintiff’s claim for probate in respect of the 2017 Will.
Current applications
Discovery
[8] On 18 February 2021 Whata J ordered the plaintiffs to provide discovery of the following categories of documents:
(a)Medical records from 2013 to say mid 2017;
(b)Carer's records from 2015, or when they commenced being kept, whichever is later, until mid-2017;
(c)All wills and testamentary documents or file notes that can be recovered;
(d)Documents that relate to John Lawford's capacity from 2015 to mid- 2017;
(e)Any documents that relate to any involvement by Mr Ferrier in the appointment of Mr Timothy Lewis as Mr Lawford's solicitor or in the making of the 2017 Will;
(f)Any documents that relate to Mr Lawford's decision to bequeath the painting "Memories" to Mr Ferrier;
(g)Any documents that relate to the attorneys' decision to terminate the licence of Mr Caughey and his wife to occupy part of Mr Lawford's house;
(h)Any documents that are relevant to the decisions to initiate the 3 proceedings referred to in paragraphs 62 to 64 of the Amended Statement of Defence and Counterclaim including any review of those decisions;
(i)Any records in relation to the 2013 Will that bear upon its validity or otherwise.
(Original Categories, or OC).
[9] The second named plaintiff, Mr Lewis, filed and served an affidavit of documents dated 25 June 2021.1
[10] The plaintiffs subsequently provided further informal discovery, and agreed to expand the categories of formal discovery. On 30 November 2021 the parties filed a joint memorandum seeking orders by consent that the Original Categories be expanded as follows:
Category (a) is to be expanded to include:
1) Medical records for Mr Lawford from mid-2017 to June 2020; Category (b) is to be expanded to include:
1)Carers' records relating to Mr Lawford, including notebooks and medication books from 2017 to 2020;
2)Records relating to Mr Lawford held by Kate McLean Homecare and Miranda Smith Homecare to which the plaintiffs are lawfully entitled;
3)Carer engagement agreements and records held by or for the plaintiffs;
1 Mr Lewis was Mr Lawford’s solicitor in relation to the 2017 Will, and various other matters.
4)Invoices issued by carers and carer agencies in respect of Mr Lawford's care.
Category (c) is expanded to include:
1)Communications between Mr Lewis, Mr Ferrier and Ms Ball or any of them about any of Mr Lawford's Wills, EPOAs and the decisions made by his attorneys to sell Rakino and College Hill;
2)Communications between Mr Ferrier, Ms Ball and Ann Guilford, and any other carer, or any of them, that refer to Ms Saint, or Edward and Charlotte Caughey;
3)Communications between Mr Ferrier and Mark Vickerman that relate to Mr Lawford;
4)Communications between Mr Ferrier and Myles Lawford that relate to Mr Lawford's Will, EPOAs, and occupation of the Flat;
5)Mr Ferrier's records held by Immigration New Zealand for the period 1 January 2015 to June 2020;
6)Communications about the issue of a trespass notice by Jackson Russell against Mr Maurangi;
7)Bank records for Mr Lawford from 1 January 2015 to 12 June 2020;
8)Time records for MacDonald Lewis Law that relate to attendances in relation to Mr Lawford's Wills;
9)Notes from the seminar referred to in Mr Lewis' file notes of 17 May 2021 and the seminar itself;
10)Communications between Mr Lewis and medical professionals about Mr Lawford.
(Expanded Categories, or EC).
[11] On 1 November 2021 the first defendant applied pursuant to r 8.19 of the High Court Rules for particular discovery of 37 categories of documents (some of which include various sub-categories). These 37 categories were set out in a schedule to the first defendant’s application. The first defendant also seeks orders that the plaintiffs:
(a)make all reasonable inquiries and efforts to obtain and discover any documentation to which the plaintiffs claim not to be lawfully entitled;
(b)conduct a “thorough and detailed investigation including with IT support assistance if necessary, to retrieve [texts, WhatsApp or other App communications] from iCloud [sic] with third-party applications if necessary or other back-up iCloud or other systems or physically from prior cellphones; and
(c)that the plaintiffs provide an affidavit setting out what steps have been taken to locate documents including what sources of documents have been searched, how relevance has been determined, how the searches have been undertaken, and explaining why documents may be irretrievable.
[12]The plaintiffs oppose the application. They say that:
(a)they have sworn an affidavit of document that discovers all documents required to be discovered pursuant to the discovery order made by Whata J on 18 February 2021;
(b)they have already agreed to expand the categories of documents of which discovery is required in order to include some of the categories of documents of which the defendant seeks particular discovery; and
(c)The other categories of documents sought by the plaintiff are overly broad, irrelevant, and discovery orders would be disproportionate.
Pleading
[13] The plaintiffs have not yet replied to the 3ASOD. They apply for directions as to whether they should, noting that the costs of doing so will ultimately be borne by the estate. The plaintiffs say the 3ASOD does not comply with the High Court Rules and general rules of pleading. They say it is prolix;2 scandalous;3 and has extensive references to evidence and quotations from discovered documents to which they should not have to plead.
[14] In their application the plaintiffs rely on r 15.1(1)(b) and the principles set out in Commissioner of Inland Revenue v Chesterfield Pre-Schools Limited.4 In a supporting memorandum Ms Grant, counsel for the plaintiffs, advises that in considering whether to plead to the 3ASOD the plaintiffs have “taken into account” that r 15.1(1)(b) provides that the Court may strike out all or part of a pleading if it is likely to cause prejudice or delay.
[15] Counsel for Myles, Ms Chambers QC, was more forthright. She submitted that the Court should strike out the 3ASOD because it will cause prejudice and delay. She says the 3ASOD contains an irrelevant and prejudicial narrative that is excessively detailed and unnecessary. She complains that the 3ASOD not only strays into matters of evidence, but expressly and repeatedly pleads it.5 Ms Chambers points out that although there is no cause of action for fraud, the 3ASOD contains allegations that at least one of the plaintiffs and other third parties have falsified evidence and committed perjury.
[16] There is merit in these criticisms. The 3ASOD is prolix. It is 315 paragraphs long but asserts the same two affirmative defences as the second amended statement of defence that was 109 paragraphs. Most of the additional 206 paragraphs plead evidence, often at great length. The discursive narrative is distracting, unnecessary and unhelpful.
2 The 3ASOD is 57 pages long and has 315 paragraphs.
3 The 3ASOD contains allegations against Mr Ferrier and third parties of falsifying documents and perjury.
4 Commissioner of Inland Revenue v Chesterfield Pre-Schools Limited [2013] NZLR 679, [2013] NZCA 53 at [89]-[91] and [94].
5 Contrary to Commissioner of Inland Revenue v Chesterfield Pre-Schools Limited at [84].
[17] Ms McDonald acknowledges there are deficiencies in 3ASOD. But she says there is no formal application to strike it out, and that the first defendant could file another amended pleading within 14 days.
[18] I agree that is the best course. The plaintiffs sought directions but there is no strike out application on foot. In any event, the 3ASOD is deficient but capable of amendment. Ms McDonald should ensure that the fourth amended statement of defence and counterclaim complies with the High Court Rules. Neither the plaintiffs nor any other parties should have to plead to hundreds of paragraphs of evidence. These matters should be saved for the first defendant’s briefs of evidence and Ms McDonald’s cross-examination. I also point out that it is unnecessary to establish dishonesty in order prove undue influence. Ms McDonald says the first defendant does not resile from that allegation. That is a matter for her, but she should be aware of the significance and potential consequences of it.
Discovery application - general background
[19] The first defendant’s affidavit in support of the discovery application is 116 paragraphs and has 750 pages of exhibits. Mr Caughey’s affidavit is 304 paragraphs and has 192 pages of exhibits. The first defendant also relies on an affidavit from one of Mr Lawford’s carers, Ms Belcher. She relies further on the affidavits that Mr Ferrier, Mr Lewis and another of Mr Lawford’s carers, Ms Guilford, filed voluntarily as to Mr Lawford’s capacity as at April 2017.
[20] Most of this evidence goes to the substantive issues that will need to be resolved at trial. It is not necessary to summarise it all in order to deal with the discovery application. Relevant background facts and the first defendant’s essential allegations can be shortly stated.
[21] Ms McDonald says the essence of the first defendant’s undue influence claim is that Mr Ferrier held such animosity towards her and Mr Caughey that he would stop at nothing to prevent them from receiving anything from Mr Lawford’s estate and to rid them from Mr Lawford’s life. She says that the “sheer scale” of Mr Ferrier’s attacks upon her and Mr Caughey after Mr Lawford executed the 2017 Will make
those matters relevant to determining the intentions of Mr Ferrier and Mr Lewis when
Mr Lawford executed the 2017 Will.
[22] As examples of Mr Ferrier’s animosity towards her and Mr Caughey the first defendant points to three separate proceedings that Mr Ferrier, as Mr Lawford’s attorney, initiated against them after Mr Lawford had executed the 2017 Will. Namely: proceedings to have Mr Caughey and his wife removed from the Mission Bay property where they had been residing (property proceedings); proceedings under the Protection of Personal and Property Rights Act 1988 to prevent the first defendant from visiting Mr Lawford (PPPR proceedings); and proceedings to dissolve the marriage between Mr Lawford and the first defendant (Dissolution proceedings) (together the Prior Proceedings).
[23] As noted above, in the 3ASOD the first defendant alleges that Mr Ferrier and others concocted evidence and deliberately swore false and affidavits in the Prior Proceedings. The first defendant also says that Mr Ferrier made defamatory comments about her to various people including Mr Lawford’s professional carers and hospital staff.
[24] During the hearing Ms McDonald emphasised that the first defendant does not make these allegations lightly and (as noted above) does not resile from them. For present purposes she says these allegations of dishonesty “automatically raises the stakes in respect of discovery … [the first defendant] seeks to find incriminating communications and to the extent that such communications exist Mr Ferrier is incentivised to strenuously oppose and such discovery”.
[25] Ms McDonald also explains that the first defendant’s case is that Mr Lewis was “captured” and influenced by Mr Ferrier to such an extent that he did not objectively assess Mr Lawford’s testamentary capacity. She alleges that as a result Mr Lewis failed to independently advise Mr Lawford as to the contents of his Will, including the removal of any provision for the first defendant and Mr Caughey.
[26] Ms McDonald bolsters these submissions by pointing out that circumstantial evidence is sufficient to prove undue influence, and that direct evidence is not
required.6 She says the essential issue is whether undue influence can be inferred from all the surrounding circumstances, with particular emphasis upon the result of the Will and the circumstances in which it was executed.7
[27] In short, the first defendant relies on her very serious allegations and the circumstantial nature of her case to support her very broad application for particular discovery. However, the primary issues in the case are; whether Mr Lawford had testamentary capacity in April 2017 when he executed the 2017 Will, and whether he was unduly influenced when he did so. Bearing those issues in mind the first defendant’s discovery application needs to be determined in accordance with the well- established principles of discovery.
Principles of discovery
[28] The concept of relevance is at the heart of discovery.8 Parties are only required to discover documents which are relevant to issues in dispute in the proceeding.9 Importantly, discovery must also be proportionate to the subject matter of the proceeding.10 If documents are of little or marginal relevance to an issue, then an order for discovery is likely to be disproportionate.11
[29] “Fishing” for documents is impermissible where the categories of documents sought do not relate to an issue in the proceeding.12 And, as Associate Judge Bell observed in West Harbour Holdings Ltd (in liq) v Tamihere “the court will not order discovery of documents if the only purpose is to impeach the credit of those who might give evidence for the other side.”13
[30] In cases where a non-party holds relevant documents, but they have a relationship with one of the parties such that the party is able to extract documents from the non-party, then that party should take all reasonable steps to obtain those
6 Green v Green [2015] NZHC 1218, at [101].
7 Estate of Keast, Re [2015] NZHC 1027, at [7](c).
8 Intercity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 1054, at [15].
9 At [17].
10 High Court Rules 2016, r 8.2(1)(a).
11 Dotcom v Attorney-General [2014] NZHC 1343, at [35].
12 Intercity, above n 8, at [34].
13 West Harbour Holdings Ltd (in liq) v Tamihere [2014] NZHC 716, at [18] citing Thorpe v Chief Constable of Greater Manchester Police [1989] 1WLR 665 (CA) at 673.
documents.14 What steps are reasonable will depend on the facts and circumstances of each case.
Particular Discovery or Varied Discovery?
[31] The present application is brought under r 8.19 of the High Court Rules 2016 which provides that:
8.19 Order for particular discovery against party after proceeding commenced
If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered
1 or more documents or a group of documents that should have been discovered, the Judge may order that party—
(a)to file an affidavit stating—
(i)whether the documents are or have been in the party’s control; and
(ii)if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and who now has control of them; and
(b)to serve the affidavit on the other party or parties; and
(c)if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.
[32] This rule allows an order for particular discovery to be made if there are grounds for believing that a party has not discovered one or more documents or a group of documents that should have been discovered.15 The applicant must first establish that the existing affidavit of documents is incomplete.16 The Court has previously followed a four stage approach for determining applications under this rule:17
14 West Harbour Holdings Ltd (in liq) v Tamihere, at [14]; and Inverness Medical Switzerland GMBH v MDS Diagnostics Ltd HC Auckland CIV-2007-404-748, 21 December 2007 at [37.9].
15 Lighter Quay Residentsʼ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818, at [17].
16 McCullagh v Robt. Jones Holdings Ltd [2015] NZHC 1462, (2015) 22 PRNZ 615 at [7].
17 Lighter Quay Residentsʼ Society Inc v Waterfront Properties (2009) Ltd, above n 15, at [17](d); citing Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, at [14]. See further McGechan on Procedure (online ed) at HR8.19.03.
(i)Are the documents relevant, and if so how important will they be?
(ii)What are the grounds, and what is the probative value of those grounds, for the belief that the documents sought exist?
(iii)Is discovery proportionate?
(iv)Weighing and balancing these matters, is an order appropriate?
[33] Apposite to the present application is Asher J’s comments in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd where he stated:18
A party cannot reasonably be required under the rules to embark on a search that is likely to be hopeless and a waste of time and money. While an applicant does not need to prove that the documents actually exist, there must under r
8.19 be “grounds for believing” that the documents exist and are in the party's control.
[34] However, the first defendant’s application is more like an application pursuant to r 8.17 to vary the terms of the discovery order made by Whata J on 18 February 2021. In substance the first defendant’s application seeks to add an additional 37 categories to the Original Categories of documents Whata J ordered the plaintiffs to discover.
[35]Rule 8.17 provides that:
8.17 Variation of discovery order
(1)Subject to rule 7.7, a party may apply for an order varying the terms of a discovery order.
(2)The variation may be granted by a Judge on the ground that—
(a)compliance or attempted compliance with the terms of the order has revealed a need for a variation; or
(b)there has been a change of circumstances that justifies reconsideration.
[36] In any event, the essential issue for me is whether the categories of documents sought are sufficiently relevant to justify the orders sought. I take into account the proportionality of the orders sought, and the expansion of Whata J’s Original Categories to which the plaintiffs have already agreed.
18 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, at [10].
Discussion and analysis
[37] Before dealing with each of the 37 categories, I make some comments in relation to the arguments Ms McDonald made in respect of many of those categories.
[38] I agree that circumstantial evidence may prove undue influence. I also accept, in principle, that evidence of matters taking place after Mr Lawford executed the 2017 Will may be relevant to determining Mr Lawford’s testamentary capacity at that time and whether he was unduly influenced. However, this application still needs to be determined in accordance with well-established principles governing discovery, especially relevance and proportionality.
[39] In this regard it is significant that the plaintiffs have already provided formal and informal discovery of over 4000 pages of documents.19 They have provided formal discovery in respect of the Original Categories. The first defendant makes no complaint about that discovery per se. The plaintiffs have also provided additional informal discovery and agreed to orders requiring them to provide formal discovery of the Expanded Categories of documents. Given the nature of this case, they have also voluntarily provided extensive affidavits as to Mr Lawford’s testamentary capacity.
[40] It is also clear from the 3ASOD and the lengthy supporting affidavits that the first defendant has found this discovery helpful. In some respects Ms McDonald described the plaintiffs’ discovery as a “game-changer”. Aside from anything else, the first defendant considers it provides grounds for her to allege that Mr Ferrier and third parties concocted evidence and deliberately made false affidavits.
[41] Finally, Ms McDonald argued that many of the categories of documents sought were relevant to show the discord between Mr Ferrier and the first defendant after Mr Lawford executed the 2017 Will. However, the fact of the Prior Proceedings go a long way towards establishing that. Amongst other things Mr Ferrier as Mr Lawford’s attorney took steps to dissolve his marriage to the first defendant. This is relevant to
19 The first defendant relies on much of this in the 3ASOD, and in the lengthy affidavits filed by the first defendant and Mr Caughey in support of the application.
my assessment of the proportionality of requiring the plaintiffs to discovery further documents which the first defendant says will show that Mr Ferrier would “stop at nothing” to ensure that she received nothing under Mr Lawford’s will.
[42] With that brief overview in mind I turn now to deal briefly with each of the 37 categories of documents, discovery of which has been sought by the first defendant:
Communications between executors
Category 1 – communications between the plaintiffs or any of them from 1 January 2015 through to Mr Lawford’s death on 12 June 2020 in relation to Mr Lawford’s personal matters
includingbeing20 Wills, EPOAs, care and welfare, relationship property being the Dissolution Proceedings, Occupation of 46 Selwyn Avenue including the Possession Order Proceeding, the PPPR Act Proceeding and personal property including the sale and purchase of paintings and other works of art.
[43] Ms McDonald submits these documents are relevant to the “relationship dynamics” between the three plaintiffs.
[44] I accept that communications between the plaintiffs will be relevant to the two affirmative defences of undue influence and testamentary capacity. But I do not consider that this justifies the broad order for particular discovery that has been sought. Nor am I persuaded that the order is sufficiently narrowed by replacing the word “including” with “being”, as Ms McDonald subsequently suggested.
[45] To the extent that documents falling within that broad category are relevant I agree with Ms Grant that they are already captured by OC(c)(d)(e)(f)(g) and (h), and that further documents will be captured by EC(c)(1) and EC(c)(2). In particular, I agree with Ms Grant that documents recording communications between any of the plaintiffs in relation to the 9 February 2018 meeting will be covered by EC(c)(1).
20 The deletions and emboldened additions in these headings reflect those that were made by the first defendant either shortly before or at the hearing on 1 December 2021.
Tim Lewis communications and documents
Category 1.1 – Communications between Mr Lewis and Claire Barker (Lawford) in relation to Mr Lawford’s Wills, EPOAs, Property, Care and Welfare,
Ms Saint, Mr Caughey, Mr Ferrier.
[46] I agree with Ms Grant that relevant documents falling within this category would include documents that also fall into categories OC(c), OC(d) and OC(i). I also note that Mr Lewis has discovered his file in relation the preparation of the 2017 Will, which includes his file note of his discussion with Ms Barker.
[47] Mr McDonald says it is a “reasonable inference” that other communications between Mr Lewis and Mr Lawford exist. I do not see why. I am not persuaded there is any reason to go behind Mr Lewis’s sworn affidavit of documents.
Category 1.2 – Communications between Mr Lewis,carers and carer agencies
[48] Ms McDonald acknowledged that it is “a matter of reasonable inference that Mr Lewis is unlikely to have communicated at any length with carers or carer agencies”. But she said that whatever communications might exist would likely be important. She does not suggest that other discovered documents reveal any particular gaps in the plaintiffs’ discovery.
[49] I note that one of the carers, Ms Belcher, has provided an affidavit in support of the first defendant’s application in which she mentions, that she was recruited in November 2017 following a series of interviews, including with Mr Lawford’s lawyer. Apart from this, she makes no mention of Mr Lewis, nor does she refer to any correspondence with him.
[50] OC(d) is “documents that relate to John Lawford’s capacity from 2015 to mid- 2017”. In my view that this would include any correspondence on that topic that Mr Lewis may have had with any of Mr Lawford’s carers. I am not otherwise persuaded that further orders are necessary.
Category 2 – File log records (including name, subject matter and date file opened and closed) in respect of all files held by MLL in which the firm acted for Mr Lawford and/or Selwyn Estates Ltd and/or the Selwyn Trust and/or CE Lawford Ltd or any other entity in which Mr Lawford had an interest.
[51] I am not persuaded that the plaintiffs should be required to discover all their file log records held by Mr Lewis’ firm in relation to all matters in which it acted for Mr Lawford and/or the various interests in which he an interest. I do not consider these log records are sufficiently relevant to Mr Lawford’s testamentary capacity as at April 2017, or any alleged undue influence by Mr Ferrier. Mr Lewis has already provided discovery of the file relating to the 2017 Will, and sets out details of his personal and professional relationship with Mr Lawford in his capacity affidavit.
Category 3 - Time records held by MLL in respect of all files opened prior to Mr Lawford's death in relation to Mr Lawford's personal matters including Wills, EPOA's, care and welfare, relationship property
includingbeing the Dissolution Proceeding, occupation of 46 Selwyn Avenue including the Possession Order Proceeding, the PPPR Act Proceeding and personal property including the saleand purchase of paintings and other works of art.
[52] Pursuant to EC(c)(10) the plaintiffs are to provide discovery of McDonald Lewis Law’s (MLL) time records of attendances in relation to Mr Lawford’s Wills. Ms McDonald says that MLL’s time records in relation to all other matters referred to in this category are also relevant given the “pivotal role played by Mr Lewis” before and after the 2017 Will. She says these time records are also relevant to the seven sub- issues which she outlines in Schedule A, including: the extent to which Mr Lewis had contact with Mr Lawford; understanding whether Mr Lewis was taking his instructions from Mr Lawford directly; understanding documents already discovered by MLL where there is no file note; and the instructions received by Mr Lewis to write to Mr Caughey and his wife asking them leave Mr Lawford’s house.
[53] However, I agree with Ms Grant that documents relevant to these issues are will be including in Original Categories (c)-(h) and EC(c)(1), (2) and (6).
[54] In the circumstances I am not persuaded that it is necessary or that it would be proportionate to require the plaintiffs also to discover the broad category of MLL’s time records that the first defendant seeks. They are of marginal relevance, if any, at all.
Category 4 - Communications between Mr Lewis and Dr Sarah Don
[55] The first defendant accepts that no order is necessary because this category of documents is encapsulated in EC(c)(10).
Category 5 - Communications between Mr Lewis and any other medical care professional otherthan Dr Sarah Don
[56] The first defendant accepts that no order is necessary because this category of documents is encapsulated in EC(c)(10).
Category 6 - The paper and notes from the seminar which Mr Lewis attended referenced in his file note of 17 May 2017
[57] The plaintiff accepts that no order is necessary because these documents are to be included within EC(c)(9).
Category 7 – Meeting minutes referred to in JEL.00907 which is Tim Lewis' deedsmemorandum of 9 July 2018.
[58]The plaintiff accepts that this document has already been discovered.
Category 8 – Communications between Tim Lewis and/or counsel and Kate McLean Homecare having anything to do with the PPPR Act Proceeding including the affidavits of Aimee McLean and Linda Hatcher filed in that proceeding.
[59] During the course of argument Ms McDonald accepted that there is unlikely to be material falling within this category. I agree. In any event, it is not clear that communications between Mr Lewis and/or counsel with Kate McLean Homecare in 2019 would be relevant to Mr Lawford’s testamentary capacity April 2017 or whether Mr Ferrier unduly influenced Mr Lawford in the making of his 2017 Will.21
21 As discussed further below, the first defendant’s case is that evidence given in the PPPR Act proceeding was constructed and false. I do not understand those allegations to be levelled against Mr Lewis. In any event, I have not seen any evidence that could support any such allegation.
Medical records
Category 9 – Medical records from 2013 to June 2020
[60] The first defendant accepts that no further orders are required because much of the discovery has already been provided or will be pursuant to EC(a)(1).
Category 10 – JEL.01032 listed as a 2009 recording butwhich is not included in the plaintiffs' Dropbox folder.
[61]The first defendant has agreed that no order is required.
Carer records
Category 11 - Carer records including notebooks andmedication books from whence they began to June 2020 including the missing carer diaries for the period 27 November 2017 - 27 May 2018.
[62] The first defendant accepts that no order is required. The discovery of these documents has already been provided or will be provided pursuant to EC(b)(1).
Category 12 – Carer records contained in spiral-boundnotebook
[63] The first defendant accepts that no order is required. The discovery of these documents has already been provided or will be provided pursuant to EC(b)(1).
Category 13 – Carer records JEL.01033 pages 009 -011, 013, 016, 018 - obscured page provided. Please provide unobscured
[64]The plaintiff accepts that no further orders are required.
Category 14 – Carer records JEL.01034 page 151- obscured page provided. Please provideunobscured.
[65]The plaintiff accepts that no further orders are required.
Category 15 – 8 July 2017 - 3 December 2017 missing medication books.
[66] The plaintiff accepts that no further orders are required. These categories are included in the Expanded Categories.
Category 16 – Carer engagement agreements/records.
[67] The plaintiff accepts that no further orders are required. These categories are included in the Expanded Categories.
Category 17 – Communications between carer agencies including Kate McLean Homecare and carers
[68] In opposing this aspect of the application, the plaintiffs point out that communications between carer agencies and carers are private communications between employer and employee (or contractor). The plaintiffs can only request these documents, but they have no control over them. Moreover, the carer’s consent may be required even if the agency is prepared to provide documents.
[69] The plaintiffs say they have requested these documents relating to Mr Lawford’s care from the two carer agencies that were involved, and that they have provided and will continue to provide what they receive. They say that no order is necessary as these records are covered by EC(b)(2)
[70] I do not consider that an order for discovery of this category is appropriate. It would likely involve a lot of irrelevant material. It would be unnecessary and disproportionate.
[71] I asked Ms McDonald how these documents are relevant. She advised that it is part of the first defendant’s case that there was a concerted plan between Ms Guilford and Mr Ferrier in which they arranged for false affidavits to be filed in some or all of the Prior Proceedings. Ms McDonald says there is already evidence to show that some of the affidavits filed in the Prior Proceedings were false. These are very serious allegations. They should not be made without strong supporting evidence. As matters stand, I do not consider the order sought is necessary or appropriate.
[72] The first defendant would need very clear evidence to support such allegations. In the meantime, it is sufficient for me to observe that EC(c)(2) would include documents of the sort alluded to by Ms McDonald during the course of her submissions.
Category 18 – Invoices issued by carer agencies in respect of the care of the deceased
[73] The first defendant accepts that no order is required because the documents will be including in EC(b)(4).
Category 19 – Visitor's book used to record visits to 46Selwyn Avenue
[74] The first defendant seeks discovery of a visitor’s book used to record visits to 46 Selwyn Avenue.
[75] In his supporting affidavit Mr Caughey says that he signed a visitor’s book at Ms Guilford’s insistence. He exhibits email correspondence he had with Ms Ball concerning the visitor’s book. On the other hand, counsel for the plaintiffs says she has been instructed that there was no visitor’s book, but that some visits were recorded in the carer’s diary.
[76] Mr Caughey’s affidavit exhibits an email from Ms Ball to him dated 28 July 2017. In that email Ms Ball refers to text message exchanges she has had with Ms Guildford in which Ms Guildford complained that the visitor’s book had not been signed. Ms Ball says she told Ms Guilford that she would not be signing the visitor’s book. In that email Ms Ball advises Mr Caughey that Ms Guilford has no right to demand “Mr Lawford’s friends and family to sign books” and suggests that Mr Caughey and his wife simply ignore it.
[77] If Ms Grant’s instructions are correct and that visitors were only ever asked to sign the carer’s diaries then these will be included in EC(b)(1). However, if Ms Guildford did keep a separate Visitor’s book then that should be discovered. If it is not discovered the plaintiffs’ should clarify the matter in the affidavit of documents.
Category 20 – Communications and documents held by Kate McLean Homecare and/or Miranda Smith Homecare relating to MrLawford
including
carer rosters and recordsrelating to:
a. Aimee McLean's email to Ms Guilford of 23 October 2019 which was exhibited to Ms Guilford's affidavit of 23 October 2019 filed in the
PPPR Act Proceeding raising concerns about the alleged detrimental effect of Ms Saint's visits on Mr Lawford;
b. the statements in the affidavit of Ms McLean dated 10 December 2019 filed in the PPPR Act Proceeding that carers for Mr Lawford, "frequently advise me of issues they have had with Mr Lawford after Belinda Saint has visited him" and that on 3 November 2019 Ms Saint was "extremely confrontational" towards Linda Hatcher who related to her how upsetting this interaction wasfor her;
c. Linda Hatcher's affidavit of 10 December 2019 filed in the PPPR Act Proceeding.
[78] EC(b)(2) provides for discovery of records relating to Mr Lawford held by Kate McLean Homecare and Miranda Smith Homecare to which the plaintiffs are lawfully entitled. The first defendant says this is insufficient and pursues her application for an order for discovery of documents falling into this category to which the plaintiffs are not lawfully entitled.
[79] I consider any such order would be disproportionate and inappropriate. The first defendant appears to be “fishing” for documents to bolster her allegations that some carers constructed incidents and gave false evidence in 2019.
Communications between Mr Ferrier and others
Category 23.
1.Communications between Mr Ferrier and Ms Guilford from when Mr Ferrier first contacted Ms Guilford in relation to Mr Lawford's care throughto the date of Mr Lawford's death.
[80] I do not consider it is necessary or would be proportionate to order the plaintiffs to provide discovery of all communications between Mr Ferrier and Ms Guilford from the time Mr Ferrier first contacted Ms Guilford until Mr Lawford’s death in 2020. That is a five-year period. I consider that EC(c)(2) is sufficiently broad. It will include any communications in which Mr Ferrier and Ms Guilford communicated in derogatory terms about the first defendant, her son or his wife, or otherwise arranged to take steps adverse to their interests.
2.Communications Mr Ferrier, Kate McLean Homecare, Miranda Smith Homecare, Ms Guilford, Aimee McLean, Linda Hatcher, Mr Lawford’s other carers or any of them as to:
a. any concerns expressed by Ms McLean having anything to do with Mr Lawford's care;
[81] I agree with Ms Grant that to the extent there are relevant the documents falling within this broad category of they will already be discovered pursuant to OC(a)(b)(c) and (d) together with EC(c)(1) and (2). Also EC(b)(2). I do not consider that further discovery orders are necessary or are proportionate.
b. any concerns expressed by any of the carers having to do with Mr Lawford's care;
c. communications or records relating to Aimee McLean's email to Ms Guilford of 23 October 2019 which was exhibited to Ms Guilford's affidavit of 23 October 2019 filed in the PPPR Act Proceeding raising concerns about the detrimental effect of Ms Saint's visits on Mr Lawford;
[82] Ms McDonald explains that the first defendant’s case is that Ms McLean’s email to Ms Guilford dated 23 October 2019 “did not just magically appear. It was contrived for the purposes of being exhibited to Ms Guildford’s affidavit”.
[83] Once again, this is a very serious allegation the first defendant makes against various non-parties. I have not seen any evidence to support this allegation. I do not think it is necessary to make the orders sought. Aside from anything else, documents recording any concerns that any of the carers may have had about effect the first defendant’s visits to Mr Lawford were having on his behaviour would fall within EC(c)(2).
d. all communications between MrFerrier and Ms McLean having anything to do with Ms McLean's affidavit of 10 December 2019 orany other affidavits filed in the PPPR Act proceeding including the affidavit of Linda Hatcher of 13December 2019.
[84] These documents would fall within EC(b)(2). There will be no issues as to whether or not the plaintiffs are lawfully entitled to them because Mr Ferrier will be party to them. I do not consider any further orders are necessary.
Category 23.1 –Mr Ferrier’s telephone records from 1 January 2015 to the date of Mr Lawford’s death
[85] The first defendant seeks discovery of all Mr Ferrier’s telephone records from 1 January 2015 until Mr Lawford’s death in July 2020. Once again, it is difficult to see how these would be relevant to Mr Lawford’s testamentary capacity in April 2017 or whether Mr Ferrier unduly influenced Mr Lawford. Ms McDonald submits that the telephone records are “a ‘stand-in’ for the alleged absence of text messages”. She says the request cannot be narrowed because a lot happened after Mr Ferrier entered into Mr Lawford’s life in 2015 that is relevant to the first defendant’s affirmative defences (i.e. testamentary capacity and undue influence). She says the telephone records are relevant to; whether Mr Ferrier’s account of his communications with Mr Lewis is accurate; and filling in the gaps which Ms McDonald submits are created by the absence of file notes from Mr Lewis.
[86] In my view it would be disproportionate to require Mr Ferrier to discovery five and a half years’ worth of telephone records. They are of marginal relevance at best. Ms McDonald largely suggests that those records could be used to impeach Mr Ferrier’s and Mr Lewis’ credibility. As noted above, discovery will not be ordered for that purpose.22
Category 24 – Communications between Mr Ferrier and Mark Vickerman
[87]These are included in EC(c)(3).
Category 25 – Communications between Mr Ferrier and Myles Lawford, who is the residuary beneficiary of Mr Lawford's estate in the cousin of Mr Ferrier, between 1 January 2015 and having anything to do with MrLawford or the shareholding in Elliott Lawford Ltd or CE Lawford Ltd
[88] EC(c)(4) will require the plaintiffs to discover communications between Mr Ferrier and Myles Lawford that relate to Mr Lawford’s Will, EPOAs and the flat at 46 Selwyn Terrace. I do not see a need for an order for discovery of communications between Mr Ferrier and Myles Lawford going beyond that. Ms McDonald submits that “communications between Mr Ferrier and Myles Lawford
22 West Harbour Holdings Ltd v Tamihere, above n 13, at [18].
having anything to do with the shareholding in Elliot Lawford Limited or C E Lawford Limited would be relevant to motive”. I am not persuaded by that submission. The first defendant is fishing. EC(c)(4) is sufficient.
Category 26 – Mr Ferrier's Immigration New Zealand travel records between 1 January 2015 - 31 December 2017.
[89]The plaintiffs have now provided discovery of these documents.
Communications between Ms Guilford and others
Category 27 – Communications between Ms Guilford and carers
[90] I agree with Ms Grant that the scope of this request is too broad. Relevant communications between Ms Guilford and other carers will be included in OC(b)(d)(e), CB(1)(2) and EC(c)(2).
Category 28 – Communications between Ms Guilford and carer agencies. This request includes: a. any communications relating to entries made by Ms Guilford and any other carers in the carer diaries; b. any concerns expressed by Ms McLean having anything to do with the care of the deceased; c. Aimee McLean's email to Ms Guilford of 23 October which wasexhibited to Ms Guilford's affidavit of 23 October 2019 filed in the PPPR Act Proceeding raising concerns about the detrimental effect of Ms Saint's visits on Mr Lawford; d. all communications between Ms Guilford and Ms McLean having anything to do with the making of Ms McLean's affidavit of 10 December 2019 or any other affidavits filed in the PPPR Act proceeding.
[91] In submissions Ms McDonald said these documents are relevant because Ms Saint’s case is that Ms Guilford:
(a)made false entries in the carer diaries regarding the negative effect of Ms Saint’s visit on Mr Lawford;
(b)gave false evidence in the PPPR Act proceeding regarding the extent and effect of Ms Saint’s visits on Mr Lawford;
(c)gave instructions to the carers to limited Ms Saint’s visits to Mr Lawford to between five and fifteen minutes; and
(d)arranged for certain individuals within carer agencies to raise false concerns and give false evidence concerning the detrimental effect of Ms Saint’s visits on Mr Lawford.
(b) I am not prepared to grant the orders sought. It is unnecessary and disproportionate. Any emails between Ms Guilford and any other carers concerning the effect of the first defendant’s visits to Mr Lawford would fall within EC(c)(2). Beyond that the first defendant is embarking on a “fishing expedition” in the hope of finding evidence to support her very serious allegations against Ms Guilford.
Category 28.1 – Communications between Ms Guilford and Mr Lewis
[92] In support of this part of the application Ms McDonald submits that it is reasonable to infer that communications between Ms Guildford and Mr Lewis would only have been about significant matters.
[93] I am not prepared to grant the order sought. It is too broad and would be disproportionate. Any communications between Ms Guilford and Mr Lewis concerning Mr Lawford’s testamentary capacity as at April 2017 would fall within categories OC(b) and OC(d).
Category 28.2 – Communications between Ms Guilford and Dr Van Roekel
[94] The first defendant has withdrawn this request. Dr van Roekel’s files have already been discovered under OC(a) and EC(1)(a).
Communications between Ms Ball and others
Category 29 – Communications between Ms Guilford and Ms Ball.
[95] Ms McDonald points to an email between Ms Guilford and Ms Ball to demonstrate that they communicated. Ms McDonald then submits that it is reasonable to infer that communications between Ms Guilford and Ms Ball would only have been about significant matters.
[96] I am not prepared to grant the order sought. Relevant communications between Ms Guilford and Ms Ball will be discovered pursuant to OC(b)(d), EC(b)(1) and EC(c)(2).
Category 30 - Communications between Ms Ball and the managing director and/or David Lunny of CE Lawford Limited regarding Mr Ferrier and/or Mr Lawford's care and welfare from 13 December 2017 until 30 May 2018.
[97] During the hearing Ms McDonald sought to narrow this request by suggesting that the time period be limited to communications between 30 December 2017 and 30 May 2018.
[98] However, the more fundamental problem is that these documents are irrelevant. In support of the application Ms McDonald refers to an email from Ms Ball to Mr Caughey in which Ms Ball says her managing director has reminded her that her job is to look after C E Lawford Limited and Mr Lawford’s financial affairs while Mr Ferrier looked after “the care side”. With respect, this does not persuade me that the documents falling within this category are relevant and need to be discovered.
Category 30.1 – Communications between Ms Ball andcarers
[99] This is unnecessary. Relevant documents will already be discovered pursuant to EC(c)(2).
Brian Groshinski artworks related
Category 31 – All documents and communicationshaving to do with the sale by Mr Groshinski of the print of Omaito thedeceased in about 2018.
[100] The first defendant withdrew her request for discovery of this category of documents.
Category 32 – All documents and communicationshaving to do with the sale by Mr Groshinski to the deceased of any other artworks.
[101] The first defendant withdrew her request for discovery of this category of documents.
70 College Hill Road sale
Category 33 – The file held by MLL in respect of the sale of 70 College Hill Road.
[102] The first defendant withdrew her request for discovery of this category of documents.
Category 34 – To the extent that it is not included in the solicitors’ file held in respect of the sale of 70 College Hill Road, all communications between Mr Ferrier and others, including the real estate agent who acted on the sale, to do with the sale of that property.
[103] The first defendant withdrew her request for discovery of this category of documents.
Sale of Rakino Island property / Mr Maurangi related
Category 35 – The file held by MLL (or if another firm, that firm) in respect of:(i) the sale of the Rakino Island property; (ii) the issue of the trespass notice on MrMaurangi.
[104]Relevant documents will be discovered pursuant to EC(c)(6).
Category 36 – File notes in relation to the contact "several years ago" by the deceased to Mr Lewis to discuss the property as referenced in Mr Lewis' letter of 22 June2018 to Mr Herbert at paragraph 2.
[105] Ms Grant advises that a check is being made for any documents relating to this issue and they will provided as part of EC(c)(6).
Bank records
Category 37 – Bank records in relation to the Mr Lawford's bank indebtedness or credit from 1 January 2015 to the date of theMr Lawford's death.
[106]This category of documents will be provided pursuant to EC(c)(7).
Ancillary Orders
[107] The first defendant sought ancillary orders as set out at paragraph [11] above. I do not consider those orders are necessary or would be proportionate in all the
circumstances. Mr Lewis’ first affidavit of documents shows that he is well aware of his obligations under r 8.15 of the High Court Rules and that he intends to comply with them. In my view it is sufficient to direct that any supplementary affidavit of documents should be in Form G 37 and specify the steps taken to locate documents. If the plaintiffs conclude that they are unable to discover documents because they are not lawfully entitled to them, the plaintiffs should specify what steps they have taken to obtain those documents and explain why they are not lawfully entitled to them.
Mr Maurangi
[108] Mr Maurangi is a beneficiary under both Wills. On 16 February 2021 he filed an appearance reserving rights pursuant to r 5.50 and r 5.51. During the hearing his counsel filed a memorandum advising that Mr Maurangi supported the first defendant’s application for particular discovery.
[109] It is unclear to me whether Mr Maurangi is aware of the plaintiffs’ agreement to provide discovery of documents in EC(c)6.23 In any event, I record his position for completeness.
Result
[110] The first defendant is to file and serve an amended Statement of Defence and Counter-claim by Wednesday, 22 December 2021.
[111]By consent I order that:
(a)the categories of discovery referred to at paragraph [3] of Whata J’s minute of 18 February 2021 (which references paragraph 5 of the Memorandum of Counsel for the Plaintiffs dated 2021) should be expanded to include the categories described at paragraph [10] above; and
23 Communications about the issue of a trespass notice by Jackson Russell against Mr Maurangi.
(b)The plaintiffs are to provide discovery of documents falling within these expanded categories.
[112] The plaintiffs are to provide discovery of any Visitor’s book used to record visits to 46 Selwyn Avenue, Mission Bay. If no such Visitor’s book exists the plaintiffs are to set out in their supplementary affidavit how they have satisfied themselves that is the case, with reference to Ms Ball’s email correspondence with Mr Caughey exhibited to his affidavit.
[113] Any supplementary affidavit of documents should be in Form G 37 and specify the steps taken to locate documents. If the plaintiffs conclude that they are unable to discover documents because they are not lawfully entitled to those documents, the plaintiffs should specify what steps they have taken to obtain those documents and explain why they are not lawfully entitled to them.
[114] Otherwise the first defendant’s application for particular discovery is dismissed.
[115] The first defendant is to pay the plaintiffs’ costs in respect of both applications, calculated on a 2B basis.
[116] Ms Chambers appeared and made submissions in support of the plaintiffs’ position in respect of both applications. However, Myles was not party to either of those applications so I decline to make an award of costs in his favour.
Robinson J
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