Cochrane v Moulden
[2024] NZHC 3877
•17 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-001988
[2024] NZHC 3877
IN THE MATTER OF the Estate of Olwyn Betty Jean Moulden BETWEEN
JANENE BARBARA COCHRANE and TERENCE RONALD MOULDEN
Applicants
AND
WARREN JOSEPH MOULDEN
First Respondent
SINCLAIR DOWSETT MEGGITT
Second RespondentASB BANK LIMITED
Third Respondent
BANK OF NEW ZEALAND
Fourth RespondentTAB NEW ZEALAND
Fifth Respondent
Hearing: 28 November 2024 Appearances:
L Lindsay and L McNeely for the Applicants D Collecutt for the First Respondent
Judgment:
17 December 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 17 December 2024 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
COCHRANE & Anor v MOULDEN & Ors [2024] NZHC 3877 [17 December 2024]
[1] Olwyn Betty Jean Moulden (Betty) died at the age of 93 on 24 September 2023. She is survived by three adult children: the applicants Janene Cochrane (Janene) and Terence Moulden (Terry), and the first respondent, Warren Moulden (Warren).1 Warren is the executor and sole named beneficiary of Betty’s estate.
[2] Betty executed wills in 1994, 2003 and 2018. The 1994 Will was executed when her husband, Ron, was alive.2 Betty and Ron executed mirror wills in which their three children were to share equally in the estate of the surviving parent and appointing Terry as executor and trustee, with Janene and Warren to jointly hold those roles if Terry died before his parents. Ron died in 1996.
[3] Betty’s 2003 Will materially altered matters. It removed Janene and Terry as residuary beneficiaries, leaving only specific gifts of jewellery to Janene and her granddaughters and appointing Warren as the sole executor and trustee. That is, the remainder of the estate was left entirely to Warren. Janene and Terry were unaware of this fundamental change until after their mother’s death.
[4] That position as to the residue was effectively replicated in Betty’s 2018 Will which also removed the provision of specific gifts of jewellery to Janene and her children. If Warren died before Betty, Terry alone would receive the remainder in contrast to the 2003 Will where both Janene and Terry would receive an equal share. A clause was included in the 2018 Will in the following terms:
I have not provided for my daughter JANENE BARBARA COCHRANE as I have no relationship with her and have not had one for the past 20 to 30 years. WARREN has looked after me all his life and TERENCE has always been on hand to help me with day-to-day matters concerning the home or just my general wellbeing.
[5] This came as a shock to Janene. She deposes that she has had a close and loving relationship with Betty all of her life and the statement in the will is untrue.3 It also appears to be at odds with the provisions in the 2003 Will which Betty executed only 15 years earlier.
1 To avoid confusion, I intend to refer to the parties by their first name.
2 The executed copy of Betty’s 1994 Will has not been located.
3 Affidavit of Janene Barbara Cochrane dated 30 July 2024.
[6] Terry and Janene were also surprised to learn after their mother’s death that her estate is relatively modest, comprising four-fifths of a property on Blockhouse Bay Road and few savings. This prompted their concerns about management of Betty’s finances, estate and the circumstances in which she executed the 2003 and 2018 Wills.
[7] The result of those concerns is this interlocutory application for pre-commencement discovery under r. 8.20 of the High Court Rules 2016 (HCR) which the applicants say is necessitated by Warren’s lack of engagement and substantive response to requests for information and documentation which may shed light on Betty’s financial circumstances.
Parties
[8] Warren is named as first respondent. The application also names as respondents: Betty’s solicitors Sinclair Dowsett Meggitt (SDM Law), ASB Bank Limited and Bank of New Zealand where Betty and/or Warren held accounts and TAB NZ where Warren holds a betting account.
[9] Warren pragmatically opposes the application in part only in terms of the scope of documents requested. The other respondents do not oppose the application. They abide the Court’s decision since they merely hold documents which belong to Betty and/or Warren.
Further background
[10] SDM Law represented Betty and her late husband from 1995 onwards and represented Betty in relation to both the 2003 and 2018 Wills.
[11] The firm also initially acted for Warren in relation to matters concerning Betty’s estate. Mr Collecutt confirmed to the Court that he represents Warren in Warren’s personal capacity.
[12] Betty and Ron’s original family home was at 415 Richardson Road in Auckland. Terry and Janene left the family home when they married their respective spouses. Warren continued to live with his parents.
[13] In December 1995, Betty and Ron sold the family home and bought another property in Donovan Street, Blockhouse Bay, in which they lived. In early 1997, Betty sold the Donovan Street property and bought a house on Blockhouse Bay Road. Betty continued to live with Warren in her home until shortly before her death.
[14] At some time, Warren acquired a one-fifth share in both the Donovan Street and Blockhouse Bay Road properties, information not known to the applicants until relatively recently. They do not know how or on what basis Warren acquired the one fifth share. They also have no knowledge of how Betty and Warren arranged their finances and joint household expenses, including mortgage repayments but understand that Warren controlled his mother’s finances for the last 30 years.
[15] On 26 May 2022, Betty executed a codicil to her 2018 Will and Powers of Attorney in favour of Warren. SDM Law again represented Betty in relation to these documents.
[16] As noted, on Betty’s death, Janene and Terry were surprised by the limited nature of Betty’s estate which they maintain is inconsistent with her frugal lifestyle over her lifetime. Those concerns, and the fundamental change in Betty’s 2003 Will caused the applicants to write via their solicitors to SDM Law requesting certain documents and information in relation to both Betty and Warren’s estate, assets and finances.
[17] No substantive response to that request was ever provided and none of the information and documents sought were disclosed. A purported but inadequate explanation for the failure to respond was given.
[18] Warren has not applied for probate of Betty’s estate. The applicants have reserved their rights in respect of removing Warren as executor. They have also signalled a claim under the Family Protection Act 1955 (FPA).
What do the applicants want?
[19] The applicants submit that there is a real probability of claims against Warren on four bases (aside from the FPA claim):
(a)The 2003 and 2018 Wills are void and have no effect having been executed under Warren’s undue influence.
(b)Warren breached fiduciary duties owed to Betty arising from his role as her caregiver (a relationship based on trust, vulnerability and representation) and/or the Powers of Attorney that Betty executed in his favour in May 2022.
(c)Warren unconscionably and knowingly took advantage of Betty’s special disadvantage.
(d)As of yet unknown dispositions or transfers of Betty’s assets during her lifetime should be set aside due to undue influence exerted by Warren.
[20] The applicants maintain that to formulate those claims, they require the documents they now seek in this application without which it is impossible or impracticable to do so.
[21] The categories of documents which the applicants seek stretch back to 1995, before their father’s death. The applicants say that year marks the beginning of the story and correspondingly of Warren’s influence on Betty. The documents fall into categories which are helpfully set out in the annexed table (Appendix 1) prepared by counsel for the applicants. That table also synthesises the respective positions of the applicants and Warren. Mr Collecutt took no issue with the summary, so I proceed on the basis that it is correct.
[22] Warren’s starting position is that the applicants are on a fishing expedition. Without conceding the point, he nonetheless takes a pragmatic approach as noted and does not oppose disclosure of certain documents. He denies there is any basis for
challenging the 2003 Will or the 2018 Will and maintains it is not unusual for a parent to prioritise a child who has lived with and looked after that parent for many decades.
[23] It follows from Warren’s position that there are two areas of contest for determination:
(a)Whether disclosure should be limited to documents created no more than six years before the date of the order of this Court.
(b)Whether documents relating to Warren’s own financial affairs ought to be subject to confidentiality protections and disclosed only to the applicants’ counsel (subject to further order of the Court) and on the basis that counsel first provides an undertaking as to confidentiality on terms acceptable to Warren or the Court.
[24] There is a third, more limited issue. Warren’s opposition refers to documents subject to legal professional privilege. It is common ground that privilege in respect of some material is that of Betty/Betty’s estate while it may be conceivable that in respect of other material the privilege is that of Warren. The applicants confirm that they are not seeking the latter. Warren is agnostic in relation to the former and abides the decision of the Court. As he is executor of Betty’s estate and does not seek to maintain the estate’s privilege, this practically resolves the point.
Should the disclosure be limited to documents created no more than six years prior to any order of this Court?
[25] Mr Collecutt submits that restricting the disclosure for some categories of documents in this way is consistent with the limitation provisions under the Limitation Act 1950 and Limitation Act 2010 because certain of the claims which the applicants seek to investigate are time-barred.
[26] This category of documents relates to transactions between Betty and Warren which the applicants signal they may wish to challenge based on claims of unconscionability, undue influence or breach of fiduciary duty (all of which are denied
by Warren). Referring to the Limitation Act 2010, Mr Collecutt submits that these are ‘money claims’4 with a six-year time limit which starts on the date of the act or omission on which the claim is based (presumably the date of the transaction) unless the claimant has late knowledge of the claim. In the event of late knowledge, a claim may be made after expiry of the primary period of six years provided such claim is made within three years after the late knowledge date, provided that is no later than 15 years after the date of the act or omission on which the claim is based (the longstop period).5
[27] Mr Collecutt’s submission on limitation periods has two limbs: first is to the effect that if a claim is statute barred then the first limb of the test under r 8.20 cannot be met because there is no real probability of a claim.6 This argument only emerged at the hearing. Secondly, and alternatively, if there is a limitation defence, the Court ought not exercise its discretion in favour of granting the application.
[28] Two foundational matters underpin this submission. The first is whether that claim is properly characterised as a money claim. The second is whether the reference to ‘claimant’ is properly understood as a reference to Betty (or Betty’s estate) rather than the applicants.
[29] On the theory advanced by Mr Collecutt, and assuming the point of view most favourable to the applicants, transactions before a date in 2010 (yet to be determined) would be time-barred due to the long-stop provision. On the view most favourable to Warren’s position, transactions earlier than a date in 2019 (yet to be determined) would be time-barred from claim.7 Mr Collecutt submits this defines the temporal scope of material to be disclosed.
[30] Mr McNeely, who had the carriage of this part of the argument for the applicants, submitted that the possibility of a limitation argument is not a factor in the required assessment under r 8.20 because the applicants’ knowledge of the relevant
4 Limitation Act 2010, s 12.
5 Limitation Act 2010, s 11.
6 The “first limb” referred to in Mr Collecutt’s submission requires that there be an adequate basis for a claim and a real probability of claim against someone.
7 No proceedings have yet been commenced so time continues to run for limitation purposes.
facts and circumstances is a factual issue while the relevant limitation provisions depend on the nature of the claims at issue. Relying on Public Trust v Vernon, he contends that claims of undue influence and breach of fiduciary obligation fall into the category of equitable fraud type claims for the purposes of limitation assessment.8
Should disclosure of Warren’s financial affairs be made on a counsel only basis?
[31] The second area of contest is the confidentiality and privacy concerns of Warren who does not want his brother and sister to pore over his personal financial information, potentially using that knowledge to embarrass him. (He acknowledges that is not the applicants’ primary purpose in advancing this application.)
[32] The categories of documents relating to Warren’s financial affairs as opposed to Betty’s financial affairs (cross-referred to the annexed table) are:
(a)Account statements for every bank account held.
(b)All annual financial statements or statements of financial position.
(c)Income tax returns.
(d)All documents in relation to any investments held, comprising but not limited to, any investment in shares, term deposits or other financial products, including any investments held through a broker or intermediary.
(e)Any share or interest held or previously held in relation to ownership of any horse or greyhound, including through an ownership syndicate.
(f)TAB New Zealand account records.
(g)Documents relating to Warren’s financial affairs held by respondents ASB and BNZ.
8 Public Trust v Vernon [2015] NZHC 1928, affirmed on appeal in Vernon v Public Trust [2016] NZCA 388.
[33] Advancing this part of Warren’s opposition, Mr Collecutt relies on r 8.25 of the HCR and s 96 of the Evidence Act 2006. He contends that confidentiality is not limited to commercial trade secrets but includes private information and particularly banking or financial information.
[34] He also refers to this Court’s decision in British Markitex Limited v Johnston9 which held that in relation to an application for pre-commencement discovery confidentiality is a factor but not an absolute bar to discovery and that the appropriate course of action may be to restrict access to documents to the applicants’ lawyers and an appropriate officer of the intending plaintiffs.10
[35] Mr McNeely submits that, because the documents relate to the Moulden family’s finances, assets and affairs, it is only the applicants who can review and consider the material in the proper context and that a ‘counsel only’ limitation will mean that counsel are hamstrung in their ability to particularise any claims. Relevantly, Mr McNeely notes that any disclosure must be subject to the implied undertakings in relation to discovered documents in the usual way, such that the applicants would not be able to use the documents for any collateral purpose.
Analysis
[36] An applicant for pre-commencement discovery under r 8.20 HCR must establish three things:
(a)the intending plaintiff is or may be entitled to claim relief against another person;
(b)it is impossible or impracticable for the plaintiff to formulate the claim without the documents sought; and
(c)there are grounds for belief that the documents may be or have been in the possession of the persons’ concerned.
9 British Markitex Limited v Johnston (1987) 2 PRNZ 535.
10 At 543–544.
[37] The Court has an overriding discretion to order discovery if satisfied that it is necessary to do so.11
[38] It is common ground that the first limb requires that there be an adequate basis for a claim and a real probability of claim against someone. This means a real, as opposed to a speculative, claim.12 Whether formulating a claim is impossible or impracticable is construed broadly. McGechan on Procedure notes that mere inconvenience is insufficient.13 What is required is an inability to plead the claim in accordance with the requirements of the rules.14 It follows that an inability to test evidential sufficiency or assess whether a claim is ‘worth the candle’ does not justify pre-commencement discovery. In short, an application for documents sought for evidentiary, rather than pleading, purposes will not be consistent with the purpose of pre-commencement discovery.15
[39] The applicants properly acknowledge that their signalled FPA claim can be formulated without disclosure of the documents this application seeks. I consider that it is arguable that claims of undue influence in respect of the 2018 and 2023 Wills cannot be properly formulated without pre-commencement discovery. Claims seeking to vitiate transactions (if any) on the basis of undue influence, breach of fiduciary obligations or unconscionability, including in relation to Warren’s acquisition of a one-fifth share of the property owned by Betty clearly cannot be properly formulated. The first limb is therefore made out.
[40] Insofar as whether disclosure to documents as far back as 1995 (when Warren’s influence may have become more pronounced) should be permitted however, there are different positions according to the nature of the potential claims.
11 Rule 8.20(4) (High Court Rules 2016).
12 Welgas Holdings v Petroleum Corp of NZ Ltd (1991) 3 PRNZ 33 at p 43.
13 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR820.03] making reference to Gray v Trustees of the Crown Superannuation Fund (1986) 1 PRNZ 239 (HC).
14 Exchange Commerce Corp Limited v NZ News Limited [1987] 2 NZLR 160, (1987) 1 PRNZ 230 (CA) at 164,234 approved in Heatherington Limited v Carpenter [1997] 1 NZLR 699, (1996) 10 PRNZ 1 (CA) at 705,6.
15 du Preez v Kelly [2021] NZHC 2611 at [22].
[41] The starting point is that both the Limitation Act 1950 and the Limitation Act 2010 are engaged.
[42] First, as Mr McNeely submits, time does not start running for the purposes of challenges to wills until probate is granted. Probate has not yet been granted. I apprehend that this is the reason why Warren does not oppose disclosure of the solicitors’ files (subject to any privilege held by Warren).
[43] Secondly, any claim seeking to impugn Warren’s acquisition of a one-fifth share in Betty’s property is, as Mr Collecutt acknowledges, not a money claim so the six-year time limitation in s 11 of the Limitation Act 2010 does not apply.
[44] Thirdly, the possibility that there is a six-year time limit in which to impugn transactions based on alleged undue influence, breach of fiduciary or unconscionability depends on whether those claims are to be construed as money claims.
[45] As referred to by Mr McNeely, Public Trust v Vernon was a case in which an elderly man went to live with his son and daughter-in-law after the death of his wife. The son spent his father’s money. The son claimed this was with his father’s blessing. The administrator of the estate said it was tainted with undue influence and sought repayment of those sums.
[46] Kòs J noted the close relationship between the pleaded claims of undue influence and unconscionability but that their focus differs. He said: 16
The focus of undue influence is on the circumstances and sufficiency of consent to a transaction. Unconscionability, on the other hand, inquires more broadly into the existence of disadvantage or disability, and whether a stronger party has taken advantage unconscionably of that disadvantage or disability.
[47] He set out the approved principles for impugning a transaction for undue influence which begins with the existence of a relationship of influence, noting too that a “probative short-cut exists where a relationship of influence is established and
16 Public Trust v Vernon, above n 8, at [116].
a transaction that calls for explanation is demonstrated”.17 In that event, the burden passes to the defendant to rebut the inference, indeed presumption, arising of undue influence.18
[48] One of the issues in Vernon was whether the Public Trust’s claims were time-barred. The defendants pleaded that the claims were subject to the Limitation Act 1950 and, to the extent that there was any unlawful subtraction of the deceased’s assets, they would be time-barred. They relied on s 21 and argued that s 21(1) and s 28 of the Act (postponement in case of fraud or mistake) did not apply.
[49]Kòs J rejected the argument. Among the reasons he gave were:
(a)Undue influence is still properly to be regarded as a species of equitable fraud though it focuses on the quality of consent by the donor.19
(b)The policy of the 1950 Act is that fraud at least postpones, and in the case of an action at Equity for recovery of trust property fraudulently extracted by a trustee excludes, statutory limitation. Section 28 is the short answer to the limitation plea.20
(c)The existence of the ‘frauds’ could not reasonably have been discovered before appointment of an administrator to the estate, the administrator had received and been able to analyse the father’s bank accounts and the son had a reasonable opportunity to explain.21
(d)For any analogy to arise with money claims under s 4(2) the substance of the equitable claim must so closely approximate a statue-barred common law claim that it would be itself inequitable to allow the
17 At [122].
18 At [122] citing Andrew Butler (ed) Equity and Trust in New Zealand (2nd ed, Wellington 2009) at [22.5.2].
19 At [148].
20 At [149].
21 At [149[.
unbarred equitable claim to “outflank” the limitation.22 By no means can what is asserted here be likened in substance to a common law restitutionary claim for money had and received.
[50] On appeal, the issue of limitation and applicability of s 28 of the Limitation Act 1950 was squarely before the Court of Appeal. The Court confirmed that breach of fiduciary duty constituted equitable fraud within the meaning of s 28(a) so that the limitation defence failed.23
[51] Vernon has some distinguishing features. Materially, the father’s will did not leave his estate to the son. The son’s actions were designed to forestall the possibility of receiving only half the estate by transferring almost its entirety to himself. In the case before this Court, the claimant is Betty’s estate, of which Warren is the sole beneficiary. The applicants have no ‘interest’ in replenishing the estate unless the 2003 and 2018 Wills are invalid for undue influence.
[52] It is unnecessary to decide whether those differences alter the complexion for the purposes of this application. While making no definitive finding, I am not satisfied that limitation defences are available for this category of claims for the reasons set out by Kòs J. The Limitation Act 2010 which applies in respect of acts and omissions after 1 January 2011 does not require any different analysis. I consider that a six-year limitation is not applicable. I am not prepared to cut off potential or nascent claims in summary fashion.
[53] It follows that I reject the proposition that documents older than six years should be excluded from disclosure.
[54] The confidentiality/privacy concerns advanced by Warren have heft, however there is a more fundamental issue at stake in that I am not satisfied that access to Warren’s accounts (other than those jointly held with Betty) meet the threshold test. In my view, analysis of Betty’s financial documents is sufficient to formulate a claim of the type signalled by the applicants and wider discovery is not necessary at this
22 At [151] citing Johns v Johns [2004] 3 NZLR 202 (CA) at [80]; Lines v Pika [2013] NZHC 503 at [67]–[70].
23 Vernon v Public Trust [2016] NZCA 388.
time. Therefore, I do not make any orders in respect of those documents save in respect of the category of documents which Mr Collecutt has indicated will be provided by consent subject to confidentiality orders.
[55] Finally, I am satisfied that it is proper that those documents in which any privilege was held by Betty/Betty’s estate as opposed to Warren, should be included in the disclosure. In the event of claims being made, and particularly any challenge to a Will, the administrator’s obligations to the Court mean that the testator’s privilege is waived to enable proper consideration of the issue of the Will’s validity.24
[56] Accordingly, I make the following orders, by consent where Warren has indicated such, and otherwise by granting the interlocutory application of the applicants:
(a)The first respondent is to provide discovery of the following categories of documents no later than 15 February 2025 (or such later period as this Court directs):25
(i)By consent, the documents described in [1(a)] and [1(b)] in Appendix 1;
(ii)By consent, the documents described in [1(c)] in Appendix 1 save for documents more than six years old as at the date of this judgment;
(iii)By consent, the documents described in [1(d)], [1(e)], [1(f]), [1(g)] and [1(j)] in Appendix 1 save for documents more than six years old as at the date of this judgment and subject to the confidentiality protections described in [58] below.
24 Family Protection Act 1955, s 11A.
25 Although there was no opposition to the time period sought by the applicants, the effect of this judgment is to enlarge the scope of material to be disclosed. For that reason, and given the impending legal vacation and provision on a confidential basis to applicants’ counsel subject to an undertaking as to confidentiality on terms acceptable to the first respondent, the period for compliance is extended to mid-February 2025.
(iv)By consent, the documents described in [1(h)] and [1(i)] save for documents more than six years old as at the date of this judgment.
(v)Those documents described in [1(c)], [1(h)] and [1(i)] in Appendix 1 dated from 1 January 1995, not already included in
(i) to (iv) above.
[57]The first respondent is to make discovery by:
(a)filing an affidavit stating whether the documents are or have been in his control and if they have been but are no longer in his control, his best knowledge and belief as to when the documents ceased to be in his control and who now has control of them; and
(b)serving the affidavit on the applicants by their solicitors; and
(c)if the documents are in his control, making those documents available to the applicants for inspection, in accordance with r 8.27 of the HCR.
[58] The documents at [56] above are to be disclosed on a confidential basis to applicants’ counsel only and subject to an undertaking as to confidentiality on terms acceptable to the first respondent, or directed by this Court if no agreement can be reached.
[59] Nothing in these orders requires the first respondent to disclose documents in which he holds legal professional privilege, but they should be listed in his affidavit of documents in a manner complying with the High Court Rules.
[60] The second respondent is to provide discovery no later than 15 February 2025, by provision of a copy of their complete file for the categories of documents described in [2] in Appendix 1 excluding documents in which Warren asserts legal professional privilege on his own account rather than on behalf of the estate of Olwyn Betty Jean Moulden.
[61] Within the later of 20 working days from the date of valid service of the sealed Court order or 15 February 2025 the third and fourth respondents are to provide ‘discovery’ of the documents in:
(a)[3(a)], [3(b)] and [3(c)] in Appendix 1 as from 1 January 1995 but limited to accounts held by Olwyn Betty Jean Moulden (joint and/or individual) and Ronald George Moulden.
(b)[3(a)], [3(b)] and [3(c)] in Appendix 1 dated within the last six years of this judgment, subject to the proviso that documents in this category in the name of Warren Joseph Moulden are to be disclosed to the applicants’ counsel on a confidential basis and subject to the same confidentiality terms in [58] above.
[62] The third and fourth respondents are not required to provide an affidavit of documents but are to provide the documents electronically and will identify by way of cover email to the applicants’ counsel the details of the search process it undertook (by reference to search terms or parameters of search) to identify any information responsive to this order.26
[63] By 15 February 2025, the fifth respondent is to provide discovery of the documents in [4] in Appendix 1, comprising Warren Joseph Moulden’s TAB account records limited to those dated within the last six years of this judgment.27
[64] The fifth respondent is not required to provide an affidavit of documents but will provide the documents electronically to counsel for the applicants and will identify by way of cover email the details of the search process it undertook (by reference to search terms or parameters of search) to identify any information that is response to the application and will disclose those documents on a confidential basis to applicants’ counsel subject to the same confidentiality terms in [58] above.28
26 Joint memorandum of counsel for applicants and fourth respondent dated 26 August 2024; Joint memorandum of counsel for applicants and third respondent dated 6 September 2024.
27 Joint memorandum of counsel for applicants and fifth respondent dated 3 September 2024.
28 Joint memorandum of counsel for applicants and fifth respondent dated 3 September 2024.
[65]In respect of the parties’ costs incurred in complying with these orders:
(a)The applicants, by agreement are to pay the reasonable costs and expenses of the third, fourth and fifth respondents.
(b)The first respondent’s reasonable costs and expenses are to be paid by the Estate of Olwyn Betty Jean Moulden but may be costs recoverable in ensuing proceedings (if any) should there be issues of costs in that proceeding.
(c)The second respondent’s reasonable costs and expenses are to be paid by the Estate of Olwyn Betty Jean Moulden.
Leave to apply
[66] The parties have leave to apply to resolve any questions of the terms of the confidentiality undertaking referred to at [58] above.
Costs of application
[67] Mr Collecutt faintly suggested that it is unclear whether an order for costs can be made in respect of an application for pre-commencement discovery, I am satisfied that the application (the applicant being the “intended plaintiff”) is the only proceeding before the Court, and consequently for a limited period the person from whom the discovery is sought (the respondent being the “intended defendant”) becomes party to that application and hence subject to the Court’s overriding discretion as to costs.29
[68] The applicants have not succeeded in their application in its entirety but were compelled to apply to the Court given the lack of substantive response by the first respondent. By way of starting point, the applicants are therefore entitled to 2B costs against the first respondent to reflect that imperative. In my assessment, the first respondent’s relative success on parts of the application merit recognition. I therefore
29 Skelton v Howcroft [2017] NZHC 2425 at [5]–[8].
make an order that the first respondent is to pay to the applicants 70 per cent of 2B costs, and reasonable disbursements in full.
............................................................
Walker J
Appendix 1
1.Discovery sought from first respondent: Warren Moulden
| Ref1. | Description | Applicants’ position | Warren’s position | Applicants’ response |
| 1(a) | All documents in relation to: (i) the purchase and/or sale of the property at 88A Donovan Street, Blockhouse Bay, Auckland; and (ii) the purchase of the property at [REDACTED] Blockhouse Bay Road, Blockhouse Bay Road, Auckland. | The documents at paragraphs 1(a) to 1(c) of the Schedule will demonstrate the nature of the arrangement in relation to Warren acquiring a 1/5th share in the properties at 88A Donovan Street and [REDACTED] Blockhouse Bay Road. These documents are relevant to establishing whether there may be claims of undue influence, unconscionability and/or breach of fiduciary duty in relation to Warren acquiring his share in the properties. More broadly, these documents form part of the overall picture as to Betty’s finances and affairs and therefore form part of the circumstances from which an allegation of undue influence may be made in relation to the 2003 and/or 2018 wills. | No opposition except for legally privileged documents. | The applicants do not oppose Warren withholding from discovery documents falling within this category over which he claims legal privilege (if any). The applicants oppose Warren asserting privilege on behalf of Betty and/or her estate in relation to any such documents. |
| 1(b) | All documents in relation to any borrowing or mortgage taking out by him and/or Olwyn Betty Jean Moulden and/or Ronald George Moulden, whether individually or jointly, in relation to the properties at 88A Donovan Street and/or [REDACTED] Blockhouse Bay Road. | Same as 1(a) above. | Same as 1(a) above. | Same as 1(a) above. |
1 Paragraph references are to Schedule 1 of the Application for Pre-Commencement Discovery dated 30 July 2024.
1
Appendix 1
| Ref1. | Description | Applicants’ position | Warren’s position | Applicants’ response |
| 1(c) | All documents in relation to how Warren acquired a 1/5th share in the properties at 88A Donovan Street and [REDACTED] Blockhouse Bay Road, including but not limited to documents which show how he financed the acquisition of his 1/5th share (if applicable). | Same as 1(a) above. | No opposition except for legally privileged documents or any documents which are more than 6 years old as at the date of the order. | The applicants do not oppose Warren withholding from discovery documents falling within this category over which he claims legal privilege (if any). The applicants oppose Warren asserting privilege on behalf of Betty and/or her estate in relation to any such documents. The applicants do not agree to limiting discovery to documents dated in the last 6 years. This category focuses on Warren’s acquisition and financing of his 1/5th share of those properties. Those shares were acquired in 1995 and 1997, respectively. It would render the discovery order redundant if discovery was limited only to documents from within the last 6 years. |
| 1(d) | The account statements for every bank account that he has held from 1 January 1995 to date. | The documents at paragraphs 1(d) to 1(j) of the Schedule will demonstrate how Warren and Betty managed their money and finances, including in relation to payment of any mortgage on the properties and household expenses. In addition, these documents may show what happened to Betty’s money and investments during her lifetime, in circumstances where Warren has told the Applicants that the only asset in Betty’s estate is her 4/5th share in the property at [REDACTED] Blockhouse Bay Road. | No opposition except for any documents which are more than 6 years old as at the date of the order and provided that discovery will be made on a confidential basis to counsel for the plaintiff only (subject to any further order of the court), and on the basis that counsel first provides an undertaking as to confidentiality on terms acceptable to the first respondent or the Court | The applicants do not agree to discovery of this category of documents being limited to the last 6 years. Warren and Betty have lived together exclusively since 1996. It would render this category of discovery meaningless if discovery were limited to documents from the last 6 years, a period commencing 22 years after |
2
Appendix 1
| Ref1. | Description | Applicants’ position | Warren’s position | Applicants’ response |
| These documents are relevant to potential claims against Warren for unconscionability and/or breach of fiduciary duty arising out of his conduct in relation to Betty’s assets and finances. In addition, Betty’s finances at the time she signed the 2003 and 2018 wills form part of the circumstances from which an allegation of undue influence may be made in relation to those wills. | this exclusive living arrangement commenced. The applicants also do not agree to these documents being discovered on a counsel only and/or confidential basis. The documents relate to family financial matters. Counsel will be greatly assisted by the Applicants themselves reviewing and commenting on those documents. In addition, counsel would not be able to advise the Applicants on potential claims and/or plead (and particularise) those claims without being able to refer to the details of these documents. The applicants are also bound by the implied undertaking / rule 8.30(4) of the High Court Rules in the ordinary way. | |||
| 1(e) | Any and all of his annual financial statements or statements of financial position from 1 January 1995 to date. | Same as 1(d) above. | Same as (1)(d) above. | Same as (1)(d) above. |
| 1(f) | His income tax returns from 1 January 1995 to date. | Same as 1(d) above. | Same as (1)(d) above. | Same as (1)(d) above. |
| 1(g) | All documents in relation to any investments that he has held since from 1 January 1995 to date, including but not limited to: | Same as (1)(d) above. | Same as (1)(d) above. | Same as (1)(d) above. |
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Appendix 1
| Ref1. | Description | Applicants’ position | Warren’s position | Applicants’ response |
| (i) Any investments (including overseas investments) in shares, term deposits or other financial products, including any investments held through a broker or intermediary; and (ii) Any share or interest that he holds (or previously held) in relation to ownership of any horse or greyhound, including through an ownership syndicate. | ||||
| 1(h) | All documents relating to any investments made by Olwyn Betty Jean Moulden since 1 January 1995. | Same as (1)(d) above. | No opposition except for any documents which are more than 6 years old as at the date of the order. | The applicants do not agree to discovery of this category of documents being limited to the last 6 years. The Applicants are seeking to understand what happened to Betty’s assets and finances, including her financial position at the time she executed the 2003 and 2018 wills. Limiting discovery to documents from the last 6 years would render this category of discovery incomplete and meaningless. |
| 1(i) | All documents relating to any bank account held by Olwyn Betty Jean Moulden, including but not limited to any joint bank account(s) that he and Olwyn Betty Jean Moulden may have held together. | Same as 1(d) above. | Same as 1(h) above. | Same as 1(h) above. |
| 1(j) | His TAB New Zealand account records from 1 January 1995 to date. | Same as 1(d) above. | Same as 1(d) above. | Same as 1(d) above. |
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Appendix 1
2.Discovery sought from second respondent: SDM Law
| Ref. | Description | Applicants’ position | Warren’s position | Applicants’ response |
| 2 | SDM Law is to provide discovery of a full copy of their complete file for each of the following categories of documents: (a) Their engagement by Olwyn Betty Jean Moulden in relation to the wills she signed on 3 March 2003 and 27 November 2018. (b) Their engagement by Olwyn Betty Jean Moulden (or, if applicable, by Olwyn Betty Jean Moulden and Ronald George Moulden, jointly) in relation to: (i) the purchase and/or sale of the property at 415 Richardson Road; (ii) the purchase and/or sale of the property at 88A Donovan Street; and (iii) the purchase of the [REDACTED] Blockhouse Bay Road house. (c) Their engagement by Olwyn Betty Jean Moulden in relation to the codicil and powers of attorney that she signed on 26 May 2022. (d) All documents that were provided to their predecessor firm, Sinclair Dowsett Meggitt, by Simpson Grierson Butler White in or around 1995. | The documents at paragraphs 2(a) and 2(c) of the Schedule will demonstrate the circumstances surrounding Betty executing the following documents, including but not limited to what legal advice she received about: (1) the 2003 will; (2) the 2018 will; (3) the 26 May 2022 codicil; and (4) the 26 May 2022 enduring powers of attorney. These documents are relevant to potential allegations of undue influence and may also be relevant to potential allegations of unconscionability and/or breach of fiduciary duty. The documents at paragraph 2(b) of the Schedule will demonstrate the nature of the arrangement in relation to Warren acquiring a 1/5th share in the properties at 88A Donovan Street and [REDACTED] Blockhouse Bay Road. These documents are relevant to establishing whether there may be potential claims of undue influence, unconscionability and/or breach of fiduciary duty in relation to Warren acquiring his share in the properties. The documents at paragraph 2(d) of the Schedule will demonstrate the circumstances surrounding Betty executing the 1994 will, including but not limited to what legal advice she received. These documents are relevant to potential allegations of undue influence in relation to the 2003 and 2018 wills. | No opposition except for legally privileged documents. | The applicants do not oppose Warren withholding from discovery documents falling within this category over which he claims legal privilege (if any). The applicants oppose Warren asserting privilege on behalf of Betty and/or her estate in relation to any such documents. |
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Appendix 1
3.Discovery sought from the third and fourth respondents: ASB and BNZ
| Ref. | Description | Applicants’ position | Warren’s position | Applicants’ response |
| 3 | ASB and BNZ are to provide discovery of: (a) Copies of all bank accounts statements since 1 January 1993 to date for all accounts or investments held in the name of any of the following persons: (i) Olwyn Betty Jean Moulden; (ii) Ronald George Moulden; and/or (iii) Warren Joseph Moulden; and (b) Copies of all bank account statements since 1 January 1993 to the date of this order for all accounts or investments held jointly between any combination of the following persons: (i) Olwyn Betty Jean Moulden; (ii) Ronald George Moulden; and/or (iii) Warren Joseph Moulden; and (c) Copies of all documents relating to all mortgages or lending since 1 January 1993 in the name of any of the following persons: (i) Olwyn Betty Jean Moulden; (ii) Ronald George Moulden; and/or (iii) Warren Joseph Moulden. | The documents at paragraph 3 of the Schedule will demonstrate how Warren and Betty managed their money and finances, including in relation to payment of any mortgage on the properties and their respective contributions to household expenses. It will also show what happened to Betty’s money and investments during her lifetime, in circumstances where Warren has told the Applicants that the only asset in Betty’s estate is her 4/5th share in the property at [REDACTED] Blockhouse Bay Road. These documents are relevant to potential claims against Warren for unconscionability and/or breach of fiduciary duty arising out of his conduct in relation to Betty’s assets and finances. In addition, Betty’s finances at the time she made the 2003 and 2018 wills form part of the circumstances from which an allegation of undue influence may be made in relation to those wills. | No opposition except for: . for any documents which are more than 6 years old as at the date of the order; and . Provided that discovery of documents relating to Warren Joseph Moulden will be made on a confidential basis to counsel for the plaintiff only (subject to any further order of the court), and on the basis that counsel first provides an undertaking as to confidentiality on terms acceptable to the first respondent or the Court. | The applicants do not agree to discovery of this category of documents being limited to the last 6 years. The Applicants are seeking to understand what happened to Betty’s assets and finances, including her financial position at the time she executed the 2003 and 2018 wills. Limiting discovery to documents from the last 6 years would render this category of discovery incomplete and meaningless. Neither BNZ nor ASB have indicated that they will have any difficulty in carrying out a reasonable search for documents across the full time period. In relation to Warren asserting confidentiality over his bank documents, the Applicants repeat their position as set out at 1(d) above. There is no basis for Warren asserting confidentiality over Betty and/or Ron’s bank documents. |
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4. Discovery sought from the fifth respondent: TAB NZ
| Ref. | Description | Applicants’ position | Warren’s position | Applicants’ response |
| 4 | TAB NZ is to provide discovery of Warren Joseph Moulden’s TAB account records from 1 January 1995 to date. | The documents at paragraph 4 of the Schedule will demonstrate Warren’s spending on sports betting. These documents are relevant to potential claims of unconscionability and/or breach of fiduciary duty against Warren as, in conjunction with the discovery sought from ASB, BNZ and Warren, they may provide evidence of how Betty’s money and/or investments were spent during her lifetime. | No opposition except: 1. For any documents which are more than 6 years old as at the date of the order; and 2. Provided that discovery of documents relating to Warren will be made on a confidential basis to counsel for the plaintiff only (subject to any further order of the court) and on the basis that counsel first provides an undertaking as to confidentiality on terms acceptable to the first respondent or the Court. | Same as (1)(d) above. In addition, TAB NZ has not indicated that it will have any difficulty in carrying out a reasonable search for documents across the full time period. |
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