BRIAN JOHN HOLMWOOD by his litigation guardian Virginia Adele Holmwood AND SAMANTHA JAYNE HOLMWOOD as executor and trustee of the Estates of Edgar Alfred Holmwood and Clara Evelyn Holmwood

[2024] NZHC 2666

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-23

[2024] NZHC 2666

BETWEEN

BRIAN JOHN HOLMWOOD by his

litigation guardian Virginia Adele Holmwood

Plaintiff

AND

SAMANTHA JAYNE HOLMWOOD as

executor and trustee of the Estates of Edgar Alfred Holmwood and Clara Evelyn Holmwood

Defendant

Hearing:

27 June 2024

Appearances:

C Bell for the Plaintiff/Respondent

J D Cameron and M Black for Defendant/Applicant

Judgment:

16 September 2024

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1]        This is an application by the defendant for leave to apply for summary judgment and for summary judgment against the plaintiff.

[2]        The plaintiff in the substantive proceeding is Brian Holmwood (Brian) by his litigation guardian, Virginia Holmwood (Virginia), who is his daughter. Brian is the respondent in the summary judgment application.

[3]        The defendant in the substantive proceeding is Samantha Holmwood (Samantha) as executor and trustee of the estates of Edgar Holmwood (Edgar) and Clara Holmwood (Clara). Samantha is the applicant in the summary judgment application.

HOLMWOOD v HOLMWOOD [2024] NZHC 2666 [16 September 2024]

[4]        Edgar and Clara were Samantha’s grandparents. Clara died on 12 December 1999. Edgar died on 23 July 2005. Brian is Samantha’s uncle and the son of Edgar and Clara. Virginia is Samantha’s cousin. Also involved in the factual matrix is Roger Holmwood  (Roger),  Samantha’s  father  and  Edgar’s  brother.   Roger  died  on   15 November 2018.

[5]        At issue are causes of action by Brian against Samantha for breach of fiduciary duty as executor and trustee of the estates of Edgar, Clara and Roger, and for an order under s 112 of the Trusts Act 2019 that Samantha is removed as a trustee of the estates of Edgar and Clara.

[6]        I need to determine whether Samantha should be granted leave to bring her application for summary judgment out of time, and if so, whether Samantha has discharged the onus of establishing that Brian cannot succeed on any of his pleaded causes of action.

Background

The wills

[7]        Clara’s will is dated 8 September 1998. She appointed Edgar and Roger as her executors and trustees. She bequeathed a life interest in her half-share of a property at Newton Place, Palmerston North, to Edgar. She bequeathed specific interests and assets to Brian to be held on trust including a life interest in her half-share of a property at Ruahine Street in Palmerston North, where Brian resides, and other interests and assets to Roger. A property at Heretaunga Street, Palmerston North and a property at Bunnythorpe were to be divided into two shares and transferred to Brian and Roger.

[8]        Edgar’s will is dated 16 March 2000. He appointed Roger and Samantha as his executors and trustees. He left the residue of his estate in equal parts to Roger and Brian, with Brian’s part to be held on trust and passed to Virginia upon Brian’s death. On Edgar’s death, Samantha was to replace him as executor and trustee of Clara’s estate.

[9]        Roger’s will appointed Samantha and Julie Reid as executors and trustees of his estate. At the time of his death, Roger was the trustee of both Clara and Edgar’s will trusts. Samantha therefore became the trustee of both of those trusts on Roger’s death.

The properties which are the subject of the dispute

[10]      The dispute essentially arises out of two property transactions in relation to the property at Heretaunga Street, Palmerston North and the property at Newton Road, Palmerston North.

[11]      With regard to Heretaunga Street, the issue is around the purchase by Roger in 2006 of the quarter share in the property that was held by Roger and Samantha on trust for Brian. Roger paid $27,250 for that share.

[12]      Brian contends that this transaction was recorded as a transfer from Edgar’s estate and, as a result of the sale proceeds being recorded under Edgar’s assets, they were divided equally between Roger and Brian. Brian contends that this means that Roger has received a half share of the sale proceeds; instead of Brian receiving

$27,250 he has ended up only receiving $13,625 and the other $13,625 went to Roger.

[13]      With regard to the Newton Place property, the issue is around the purchase by Roger of the half share in the property that was held equally by the Clara and Edgar estate trusts for Brian’s benefit. The sum of $36,250 was credited to Clara’s estate trust account and the same amount credited to Edgar’s estate for its one quarter share.

[14]      Brian contends that the issue here is with the funds recorded in Edgar’s estate. Brian says that these were treated as an asset of the estate rather than sale proceeds for Brian’s interest. Brian says that this means, as with the Heretaunga proceeds of sale, Roger was distributed a half share of the sale proceeds. Roger has benefitted in the sum of $18,125 which should have been held in Edgar’s estate for Brian.

Legal principles — summary judgment

Leave to apply for summary judgment

[15]      Rule 12.4(3) of the High Court Rules 2016 provides: “An application by a defendant may be made either at the time the statement of defence is served on the plaintiff, or later with the leave of the court.”

[16]      No guidelines are laid down in the High Court Rules for the granting of leave, the question is a discretionary one and it is up to the party applying for leave to show why it should be granted.1

[17]      It is recognised that there are three factors that should be considered in relation to the issue of leave:2

(i)has the delay been satisfactorily explained;

(ii)are the merits of the applicant’s summary judgment application particularly strong and therefore deserving of determination by the Court at a time later than prescribed by the High Court Rules 2016; and

(iii)is there any risk of miscarriage of justice by determining the application at that later point in time?

[18]      The Court of Appeal has emphasised that leave should not be treated as a mere formality and should be addressed as a prior step to the consideration of the summary judgment application itself:3

We add that it is important that leave be dealt with as a prior step to the merits of an application for which leave is required. The criteria for granting leave need to be addressed, even if the merits of the substantive application are, themselves, an important aspect of the leave decision.

1      Tip Top Ice Cream Co Ltd v Polarland Ltd (2002) 7 NZBLC 103, 564 (HC) at [27].

2      Fowler v Selwyn District Council [2021] NZHC 2218 at [12] citing Tip Top Ice Cream Co Ltd v Polarland Ltd, above n 1, at [28].

3      Stephens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734 at [13].

[19]      In Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd, Andrews J held that the Court should not grant leave to apply for summary judgment out of time unless doing so will have the effect of avoiding prolonged proceedings.4

Summary judgment

[20]Rule 12.2 of the High Court Rules provides that:

…

(2)The court may give judgment against a plaintiff if the defendant  satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[21]      In Stephens v Barron, the Court of Appeal summarised the long-standing Court of Appeal authority on defendants seeking summary judgment, Westpac Banking Corp v M M Kembla New Zealand Ltd,5 as follows:6

[9]   …  This  Court’s   decision  in  Westpac   Banking  Corp  v  M  M  Kembla   New Zealand Ltd makes it clear that a defendant seeking summary judgment has a considerable burden to discharge. Elias CJ delivering the judgment of the Court, made the following points:

(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.

(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.

(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.

(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary

4      Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 592, (2015) 22 PRNZ 724 at [34]–[35].

5      Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).

6      Stephens v Barron, above n 3, at [9] (footnotes omitted).

judgment would pre-empt a plaintiff exercising the right to amend the pleadings.

(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.

[22]      Regarding proof and the onus of proof, the Court of Appeal in Westpac Banking Corp Ltd stated:7

[63]      Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff’s claim. That would permit a defendant, perhaps more in possession of the facts than the plaintiff … to force on the plaintiff’s case prematurely before completion of discovery or other interlocutory steps and before the plaintiff’s evidence can reasonably be assembled.

[64]      The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. Even then, it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.

[23]In Jones v Attorney-General, the Privy Council held that summary judgment:8

… should not be given for the defendant unless [the defendant] shows on the balance of probabilities that none of the plaintiff’s claims can succeed. That is an exacting test, and rightly so since it is a serious thing to stop a plaintiff bringing his claim to trial unless it is quite clearly hopeless.

[24]      An application for summary judgment by the defendant is similar to a striking out application in that the defendant has to show that the plaintiff’s claim is clearly untenable and the plaintiff cannot succeed. The difference between the two types of application is that an application for summary judgment allows for affidavit evidence to be provided. It will therefore be possible to obtain judgment on the basis of material other than that contained in the pleadings.9 The two types of application are not

7      Westpac Banking Corp Ltd, above n 5, at [63]–[64].

8      Jones v Attorney-General [2003] UKPC 48, [2004] 1 NZLR 433 at [10].

9      Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR 12.2.07(1)].

necessarily interchangeable. If the dispute is essentially a legal question, striking out is likely to be the appropriate course of action.10

[25]      Further, summary judgment may be given where the interpretation of a contract is an issue.11

Delay in applying for summary judgment

[26]      In this case, both parties accept that the only relevant factors with regard to leave are the explanation for the delay and the merits of the summary judgment application.

[27]      With regard to delay, the proceeding was accepted for filing on 11 May 2022. The statement of defence was filed on 29 July 2022. The application for summary judgment by the defendant is dated 13 May 2024.

[28]      Counsel for Samantha submit that, at the time of filing of the statement of defence, the parties were hopeful that the matter may be able to be settled, given the family nature of the dispute. Further, the statement of claim contained allegations that were ambiguous and made the matter not amenable for summary judgment given it was not clear exactly what was alleged, against whom it was alleged, and the legal basis for claims. Further, it was not until documentary disclosure was obtained that it became apparent that the matter could be within the summary judgment jurisdiction. In summary, counsel for Samantha submit that at the heart of this proceeding are events and documents of considerable vintage (20 years) and counsel assessed that until those matters had been reviewed summary judgment was inappropriate.

[29]      Brian filed an amended statement of claim on 15 March 2024. On 21 April 2024, the amended statement of defence was filed and shortly thereafter on 13 May 2024 Samantha sought leave to apply for summary judgment. As acknowledged by

10     Body Corporate 207624 v North Shore City Council [2012] NZSC 83, [2013] 2 NZLR 297 at [4].

11     Jowada Holdings Ltd v Cullen Investments Ltd CA 248/02, 5 June 2003 at [29]; Tegel Foods Ltd v Neal [2018] NZHC 1921 at [40].

counsel for Samantha, the right to apply for summary judgment arises at the time of filing the initial documents, so leave is required.12

[30]      Brian does not accept that the delay in this case has been satisfactorily explained. Mr Bell, for Brian, notes that no interlocutory applications were made in respect of the statement of claim by Samantha nor any notice requiring further particulars. Mr Bell submits that there was no change to the circumstances arising from the provision of additional documentation to Samantha.

[31]      In this case, there has been significant delay between the filing and service of the statement of defence and the filing of the application for summary judgment by Samantha. The period of delay is approximately 22 months. There may be a satisfactory explanation for the significant delay in this case. However, this is just one of the factors to consider on the issue of leave. I do not consider that delay is the determining factor in this case.

Merits of the application for summary judgment

[32]      The issue is whether the merits of Samantha’s case for summary judgment are particularly strong and therefore deserving of determination at a much later time than prescribed by the rules.

[33]      As this is an application for summary judgment, Samantha has to show that none of Brian’s causes of action can succeed. There has been no alternative application made for strike out of any cause of action. If Samantha does not satisfy me on the balance of probabilities that none of Brian’s causes of action can succeed then Samantha is not entitled to summary judgment. In this regard, I turn to consider the merits of Samantha’s case for summary judgment on Brian’s second cause of action.

Second cause of action

[34]      This is a cause of action under the Trusts Act 2019. Brian alleges that in her capacity as trustee of the estates of Edgar and Clara, Samantha owes ongoing duties

12     Gorman, above n 9, at [HR12.4.01].

to Brian which include a duty to act honestly and in good faith, and a duty to act for the benefit of beneficiaries. Brian alleges that by virtue of Samantha’s failure to remedy the effect of the property transactions referred to above, Samantha is in breach of her duties to Brian. Brian alleges that it is therefore necessary and desirable that Samantha is removed as a trustee of the will trusts of Edgar and Clara.

[35]      After discussion with counsel for Samantha, it was confirmed that Samantha is not raising an affirmative defence under the Limitation Act 1950 and/or Limitation Act 2010 in relation to the second cause of action.

[36]      Samantha accepts that she owes duties to Brian as pleaded. However, she denies any breach of her duties. Counsel for Samantha submit that when she was given notice of the allegations made on behalf of Brian in 2019, she instructed her solicitor to investigate the matter with Fitzherbert Rowe  and  Land  Information New Zealand (LINZ). Her evidence is:

I instructed my solicitor to obtain documents from Fitzherbert Rowe and to contact Land Information New Zealand (LINZ). I understand the conclusion of those investigations was that there was no unjust gain by Roger in relation to the purchases. I understand the documentation of Roger’s purchases could have been clearer and the way that the transfers were recorded on the title caused ambiguity.

[37]      Counsel for Samantha submit that, acting as a responsible trustee, following advice that there was no impropriety, Samantha did not pursue matters further.

[38]      However, the allegations of breach of duty in relation to the second cause of action appear to be based on a series of events since early 2019 which Brian alleges have resulted in the failure to remedy the effect of the transactions. Virginia’s affidavit evidence sets out the events that have occurred since early 2019 with regard to her discovering the alleged errors and attempting, on behalf of Brian, to obtain information about the transactions. This involved regular communications between Virginia and Samantha throughout 2019 during which Virginia raised her concerns about the transactions and the way Brian’s interests had been represented by the estate trustees and how the estate lawyers, Fitzherbert Rowe, had acted on the estates, and about irregularities which had been identified. In July 2019, Virginia engaged solicitors (Todd Whitehouse) to assist Brian and her in obtaining information about the trust and

estate management. Todd Whitehouse engaged with Fitzherbert Rowe regarding the provision of further information.

[39]      In around September or October 2019, Virginia says that Samantha advised that there was no money available to rectify any issues, and that either Virginia personally or Brian would have to cover the cost for pursuing the matter further with Fitzherbert Rowe.

[40]      Subsequently in July 2020, Samantha advised Virginia that a complaint had been submitted to the Law Society regarding Fitzherbert Rowe and that Virginia should wait until after that had concluded before taking any steps.

[41]      Virginia says that subsequently, she filed these proceedings on Brian’s behalf. Virginia says that throughout the proceedings it has been difficult to obtain basic documents from Samantha. She says that she has received trust account statements for both trusts up to 31 March 2019. However, Brian has not received trust account statements after 31 March 2019.

[42]      Virginia says that, on 29 January 2024, her lawyer wrote to Samantha’s lawyer requesting trust account statements (or realisation statements) for funds held in each estate trust from 31 March 2019 to the present. Subsequently, Fitzherbert Rowe advised that the firm was no longer involved. Virginia’s lawyers then wrote to Samantha’s current lawyers, Willis Legal, requesting the trust account statements. Virginia says that the requests for this documentation have been ignored except for a response querying why the documents are relevant.

[43]      Virginia also states that Brian has not been provided with an update as to the Law Society complaint against Fitzherbert Rowe or about any claims against LINZ which she understood was a possible action Samantha was taking.

[44]      Samantha has not provided any evidence in reply to Virginia’s evidence. Although she refers to her solicitors undertaking investigations with Fitzherbert Rowe and LINZ, she has not adduced any correspondence in this regard or documentary

evidence as to the outcome of those investigations. Samantha does not refer to the complaint against Fitzherbert Rowe in her affidavit at all.

[45]      Mr Cameron submits that some information regarding the investigations undertaken by Samantha’s solicitor with Fitzherbert Rowe and LINZ has been provided to Virginia. Mr Bell submits that he understands that Virginia does have some correspondence and emails but no clear legal opinion as to the position. Mr Bell submits that as the onus is on the defendant to satisfy the Court that the plaintiff’s claims cannot succeed, Samantha should have put forward documentation supporting her “understanding” as to the outcome of those investigations.

[46]      Overall, I consider that there are too many unresolved factual issues and too many gaps in the evidence for me to be satisfied that the case should be dealt with on a summary basis. There is no evidence before the Court as to the specific steps taken by Samantha and her solicitors regarding investigations with Fitzherbert Rowe and LINZ or documentary evidence as to the outcome of those investigations and advice provided to Samantha. Further, although there is evidence of a complaint having been made against Fitzherbert Rowe in relation to their acting for the estates, there is no evidence from Samantha as to the outcome of that complaint. There is also evidence of numerous requests for information being made by and on behalf of Virginia both before and after the commencement of proceedings which goes to the issue of breach of duty.13 I consider that proper determination of Brian’s second cause of action requires full discovery of relevant documentation between the parties and testing of the evidence of the relevant witnesses at trial.

[47]      In summary, I am not satisfied on the balance of probabilities that Brian’s second cause of action cannot succeed and is “hopeless”.14 Therefore, the merits of Samantha’s case for summary judgment against Brian are not sufficient to justify determination at a time later than prescribed by the High Court Rules.

13     See s 52 of the Trusts Act 2019.

14     Jones v Attorney-General, above n 8 at [10].

[48]      This is sufficient to dispose of Samantha’s application for leave and for summary judgment. However, for completeness, I also consider the merits of Samantha’s case for summary judgment on Brian’s first cause of action.

First cause of action

[49]      Brian’s first cause of action alleges breach of fiduciary duty by Samantha. The allegation is that in her capacity as executor and trustee of the estates of Roger, Edgar and Clara, she is liable for Roger’s breaches of duty during his period of trusteeship. Further, in her capacity as trustee of the estates of Edgar and Clara, she has also breached her duties by virtue of her knowledge of the relevant transactions and her failure to take steps to remedy the gains obtained by Roger (or his estate). The relief sought is an order that Samantha account to Brian for the sums received in breach of duty.

[50]      After discussion with counsel for Samantha, it became clear that Samantha is claiming summary judgment on Brian’s first cause of action only on the basis of an affirmative defence that the cause of action occurred between 2000 to 2005 and is barred by the Limitation Act 1950.

[51]      Section 21 of the Limitation Act 1950 provides for actions in respect of trust property:

(1)No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action—

(a)in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b)to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

(2)Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of 6 years from the date on which the right of action accrued:

Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property until the interest fell into possession.

…

[52]      Samantha relies on subs (2) of s 21. Counsel for Samantha refer to the decision of the Court of Appeal in Enright v Newton regarding when the cause of action accrued.15 In that case, the Court of Appeal held that:

[43]      A cause of action is simply the existence of a factual situation that entitles one person to obtain from the court a remedy against another person. A cause of action accrues when all the necessary facts exist. In the context of a claim for breach of fiduciary duty, time does not start to run for limitation purposes until all the facts which together constitute the cause of action have been, or could with reasonable diligence have been discovered. …

[44]      This position is reflected in the commentaries in Halsbury’s Laws of England and Laws of New Zealand, both of which state that in order to prove that a person might have discovered a fraud with reasonable diligence at a particular time, it is not sufficient to show that he might have discovered the fraud by pursuing an enquiry into some collateral matter. Rather, it must be shown that there was something to put him on enquiry as to the matter itself and that if enquiry had been made it would have led to the discovery of the real facts.

(Emphasis added; footnotes omitted)

[53]      Counsel for Samantha submit with reference to the pleaded case, the relevant facts are:

(a)the existence of Clara’s will trust and Edgar’s will trust;

(b)that Roger was a trustee in 2005/2006 when the property transactions in relation to the relevant properties took place;

(c)that Brian was a beneficiary;

(d)that the property transactions occurred;

(e)that the trust received income from the property transactions; and

(f)that funds had been advanced to Roger.

15     Enright v Newton [2020] NZCA 529, [2021] 2 NZLR 412.

[54]       Counsel for Samantha submit that Brian could, with reasonable diligence, have discovered these facts at the latest by 6 January 2006 being the latest date of the property transactions and after the date of the realisation statement showing the funds were transacted. Counsel for Samantha submit that the ability to discover the material facts is evidenced by the following:

(a)Brian knew, or can reasonably have been inferred to have known, that his parents had died (leaving their estates);

(b)Roger was Brian’s brother, accordingly Brian could have asked Roger about the estates;

(c)Brian told Virginia that he received an allowance, and that it stopped after Roger died;

(d)Brian could reasonably have enquired as to where his allowance was coming from, which would have alerted him to the fact (had he not already known) that he was a beneficiary;

(e)the records in relation to the property transactions were publicly available;

(f)as a beneficiary, Brian was entitled to receive the documents relating to the trust and could have asked the solicitors acting for a copy; and

(g)no exceptional measures would have needed to have been taken to discover the alleged facts.

[55]      However, counsel for Brian submits that it would not have been until 2019 that the transactions identified as benefiting Roger to Brian’s detriment would have become known to Brian. Mr Bell refers to Virginia’s evidence as to Brian’s reduced capacity and that she has been Brian’s attorney subject to an enduring power of attorney dated 11 July 2019. Virginia gives evidence about Brian’s inability to manage his own personal welfare or finances. She states that for as long as she can remember throughout her life Brian has had trouble with mathematics, finances, spelling, writing

and deeper comprehension of any topic. She states that Brian can understand the meaning of things when explained to him in simple terms, but it is necessary to check for clarity and ask him to repeat back what he understands is important.

[56]      Counsel for Samantha submit that the issue of Brian’s capacity has been overplayed in the evidence. They refer to the fact that Brian was able to understand and provide an enduring power of attorney to Virginia in July 2019. However, Mr Bell submits that Brian is a particularly vulnerable person and this can be seen from the fact that Clara and Edgar structured their estates such that Brian’s share was held in a separate trust for his benefit rather than being transferred directly to him as was Roger’s share.

[57]      Mr Bell further submits that there is no evidence that Brian was ever advised that he was a beneficiary of the estate trusts, or that he was ever advised about the specific property transactions which it is submitted resulted in him suffering the alleged loss. Mr Bell submits that even if Brian had known about the property transactions, and there is no evidence that he did, he would not have had the ability to comprehend the documentation which demonstrates the breach, and there was no reason for him to believe that there were any issues with the transactions to warrant further enquiry.

[58]      In my view, there is a disputed issue of material fact here as to when Brian discovered, or could, with reasonable diligence, have discovered all the necessary facts which together constitute the cause of action for breach of fiduciary duty. I do not consider that this issue can be confidently determined from the affidavit evidence before me. It seems to me that the proper determination of this issue will require full discovery of documents and oral evidence and testing of the evidence of all relevant witnesses at trial.

[59]      In summary, I am not satisfied on the balance of probabilities that Brian’s first cause of action cannot succeed and is “hopeless” because it is time barred under

s 21(2) of the Limitation Act 1950.16 Therefore, the merits of Samantha’s case for summary judgment against Brian are not sufficient to justify determination at a time later than prescribed by the rules.

Conclusion

[60]      For the reasons set out above, I am not satisfied that the merits of Samantha’s case for summary judgment are sufficient to justify leave being granted.

[61]      Even if leave to apply for summary judgment was granted, Samantha has not satisfied me that none of Brian’s causes of action can succeed.

Result

[62]      The application by the defendant, Samantha Jayne Holmwood, for leave to apply for summary judgment against the plaintiff, Brian John Holmwood, is dismissed.

[63]      As to costs, my preliminary view is that the plaintiff has been successful and is entitled to costs on a 2B basis and reasonable disbursements. The parties should endeavour to agree costs. However, if costs cannot be agreed, then memoranda may be filed (not exceeding three pages — excluding costs schedules) and costs will be determined on the papers.

[64]      The matter is to be listed in the next Associate Judge’s Chambers List for Palmerston North for directions to be given as to the next steps in the proceeding.

Associate Judge Skelton

Solicitors:

Cullinane Steele Ltd, Wellington for Plaintiff Willis Legal, Napier for Defendant

16 Brian also relies on ss 21(1)(b) and 28 of the Limitation Act 1950 as bases for arguing that his first cause of action is not statute barred. However, in the circumstances, it is not necessary to consider these additional arguments.