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Clark v Clark

Clark v Clark

Case [2022] NZHC 2665 14 October 2022

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000463

[2022] NZHC 2665

BETWEEN
GREGORY BERNARD CLARK

Plaintiff

AND

FELICITY KATE CLARK

Defendant

Hearing: 10 October 2022

Appearances:

G E Slevin for Plaintiff

J Moss and G P Davis for Defendant

Judgment:

14 October 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 14 October 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CLARK v CLARK [2022] NZHC 2665 [14 October 2022]

[1] The plaintiff (Mr Clark) is the father of the defendant (Felicity). Mr Clark is suing Felicity to recover loan advances said to have been made to Felicity over a period from August 2015 to April 2016. When commencing the claim, Mr Clark applied for summary judgment. His application was dismissed. He now applies for leave to make a second application for summary judgment, which Felicity opposes.

[2] For her part, Felicity is applying for particular discovery, which Mr Clark opposes.

[3]This judgment therefore deals with the applications:

(a)by Mr Clark for leave to make a second application for summary judgment pursuant to r 12.4(2AA) High Court Rules 2016; and

(b)by Felicity for particular discovery of several categories of documents pursuant to r 8.19 of the High Court Rules.

[4]The issues in relation to Mr Clark’s application are:

(a)whether there are special circumstances justifying the grant of leave to bring a second summary judgment application; and

(b)whether it is appropriate to grant leave in the exercise of the Court’s discretion.

[5] In relation to Felicity’s application, the primary issue is whether the documents she seeks are relevant to any matter in issue.

Background

[6] Between August 2015 and April 2016, Mr Clark and Felicity entered into several written loan agreements in respect of advances that were made to Felicity at her request. The advances were to enable Felicity to purchase and repair earthquake damaged properties at Woodham Road and Bickerton Street and to advance her career

as a property investor. Notwithstanding the terms of the loan agreements, Felicity never paid any interest on the advances, nor did she repay the principal amounts.

[7] When Mr Clark formally demanded repayment of the advances, Felicity advised that she would not be repaying them. She says the advances were gifts by way of an early inheritance and that her parents were motivated to make the gifts because of mistreatment she had suffered growing up. The loan agreements were prepared and signed, she asserts, only to protect her in the event that she separated from her partner and he made a claim on the properties. She also says several loan agreements were entered into under duress.

[8] In October 2021, Mr Clark commenced this proceeding. The claim, as initially filed, relied only upon the loan agreements. Following a hearing before me, I dismissed Mr Clark’s application for summary judgment as, while I considered Felicity’s position was weak, I could not conclude that…

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 Clark v Clark

Details

AGLC: Clark v Clark [2022] NZHC 2665
Case: [2022] NZHC 2665
Decision Date: 14 October 2022

CaseChat Overview and Summary

The case of Clark v Clark is a proceeding in the High Court of New Zealand, Christchurch Registry, involving a claim by Gregory Bernard Clark against Felicity Kate Clark for the recovery of loan advances made between August 2015 and April 2016. The plaintiff seeks to recover these advances on the basis of written loan agreements. Felicity contests the claim, asserting that the advances were gifts motivated by mistreatment she suffered growing up. The case involves two primary applications: Mr Clark's request for leave to file a second application for summary judgment and Ms Felicity's application for particular discovery of specific documents.

In relation to Mr Clark's application for leave to make a second application for summary judgment, the court considered whether special circumstances existed to warrant such a leave and whether it was appropriate to exercise its discretion in favour of granting leave. The court found that Mr Clark had not established special circumstances justifying a second application. The court also noted that granting leave would not avoid prolonged proceedings and could lead to further expense and delay, especially with the case already set down for trial. Consequently, the application for leave was dismissed.

Regarding Felicity's application for particular discovery, the court examined whether the documents she sought were relevant to any matter in issue. The court ruled that some of the attachments to emails listed in Mr Clark's affidavit of documents should be disclosed, while others were irrelevant or not within Mr Clark's control. Concerning documents relating to Mr and Mrs Clark's assets and liabilities, the court found that they were not relevant to the issues in the proceeding. Lastly, the court determined that offers received by the executors of the estate of Mollie Clark relating to certain properties were not relevant either, as they did not connect to the sale of the properties or Felicity's allegations of mistreatment.

In conclusion, Mr Clark's application for leave to make a second application for summary judgment was dismissed, and Felicity's application for particular discovery was partially granted. The court directed the parties to confer and submit proposed directions for the trial, while costs were to be determined based on further discussions between the parties' counsel.

Orders