Chin v Payne - [2022] NZHC 1162

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-350

[2022] NZHC 1162

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER

of an application for an order under section 4 of the Family Protection Act 1955

BETWEEN

SANDRA CHIN

Plaintiff

AND

STEVEN PAYNE

Defendant

Hearing: 18 May 2022

Appearances:

P Chisnall and D MacKenzie for Plaintiff (by AVL) B Sheehan for Defendant (by AVL)

G Slevin for Estate (by AVL)

Judgment:

25 May 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

CHIN v PAYNE [2022] NZHC 1162 [25 May 2022]

[1] This judgment concerns a number of interlocutory applications arising from a dispute between a sister and brother concerning their father’s estate.

[2] As I have said, the parties are brother and sister, being the children of the late Donald Gordon Payne (Donald) who died on 22 December 2020. It is Donald’s estate which is in issue in this proceeding.

[3] The parties’ mother was the late Peggy Agnes Payne (Peggy) who died on 7 October 2016, leaving a Will dated 13 February 2009. Under Peggy’s Will the residue of her estate went to Donald.

[4] Mrs Chin has commenced this proceeding under the Family Protection Act 1955 (FPA) (the FPA proceeding) seeking provision from her father’s estate.

[5] Donald made a Will in 2009. He changed his Will in 2017 to appoint the defendant, Steven Payne (Steven) his sole executor and beneficiary. In a separate proceeding CIV-2022-485-33, Mrs Chin asserts Donald’s 2009 Will was a mutual Will under s 30 of the Wills Act 2007 (the Mutual Wills proceeding). Under the 2009 Will, Mrs Chin would receive assets to the approximate value of $630,000 on the basis the total value of Donald’s estate is $3,550,000. Mrs Chin says the value of the estate is more like $4,500,000 given the recent increase in the value of property. The major asset Mrs Chin would receive under the 2009 Will is a property in Johnsonville, Wellington, that she has lived in rent free since the mid-1980s. Save for paying some rates, she has not paid any rent or other outgoings.

[6] Mr Chisnall, counsel for Mrs Chin, explained the Mutual Wills proceeding was commenced as an ordinary proceeding under pt 5 of the High Court Rules 2016 (the Rules) because of uncertainty as to whether the originating application procedure could be used as of right.

[7]The following applications by Mrs Chin are before the Court:

(1)That the Mutual Wills proceeding (CIV-2022-485-33) be continued as an alternative cause of action in the FPA proceeding, with the Mutual Wills proceeding to be discontinued with no issue as to costs.

(2)That Steven, in his personal capacity as a beneficiary of Donald’s estate, provide further and better discovery as to:

(a)the transactions whereby he acquired shares in Don Payne Ltd in or about 27 March 2006 and 12 June 2007;

(b)the…

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 Chin v Payne

Details

AGLC: Chin v Payne [2022] NZHC 1162
Case: [2022] NZHC 1162
Decision Date: 25 May 2022

CaseChat Overview and Summary

This case involves an application by Mrs Chin for an order under the Family Protection Act 1955 (FPA) seeking provision from her deceased father’s estate. The case also involves a separate proceeding by Mrs Chin against the executor and beneficiary of her father’s estate, Steven Payne, seeking to have the Court declare that the will made by her parents in 2009 was a mutual will. The court was required to decide whether the two proceedings should be consolidated, the extent of discovery to be provided by the parties, and whether Steven, as beneficiary, was required to disclose his financial position. The court consolidated the two proceedings and directed the parties to provide general discovery within 10 working days. Mrs Chin was also directed to provide a sworn statement of assets and liabilities and an explanation as to the timing of the removal of Champagne Trustees Limited from the Companies Office Register. Steven’s extensive application for discovery was dismissed, except for the discovery of the valuation of the business and its assets and how that value was satisfied, including whether there was any gifting. The consolidated proceeding is set down for a two day hearing on 16 and 17 August 2022. Costs on the applications are reserved.

Orders