Commons v Commons - [2020] NZCA 49

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA393/2019
[2020] NZCA 49

BETWEEN	ANDREW HAMILTON JOHN COMMONS Applicant
AND	HAMISH JOHN COMMONS, PATRICIA ANNE COMMONS AND JONNE BRYDE WILLCOX First Respondents COMAC TRUSTEES LIMITED Second Respondent

Court:	Clifford and Collins JJ
Counsel:	Applicant in person K A Muir and L K Aspin for Hamish John Commons and Jonne Bryde Willcox (in their personal capacity) R F von Keisenberg for Patricia Anne Commons (in her personal capacity) M K Brady for Second Respondent and Hamish John Commons and Jonne Bryde Willcox (in their capacity as trustees)
Judgment: (On the papers)	11 March 2020 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThe applicant is to pay costs for a standard application on a band A basis and usual disbursements to each of (i) Hamish Commons and Jonne Willcox in their personal capacity; and (ii) Patricia Commons in her personal capacity.

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REASONS OF THE COURT

(Given by Clifford J)

The applicant, Mr Andrew Commons, is challenging the will of his father, Dr John Commons, under the Family Protection Act 1955.[1] Mr Commons is a child of Dr Commons’ first marriage. The first respondents are the widow (Patricia Commons) and two children (Hamish Commons and Jonne Willcox) of Dr Commons’ second marriage, in their capacities as beneficiaries of his estate.[2] Together with Comac Trustees Ltd, Hamish Commons and Jonne Willcox are separately represented as trustees of the estate.
[1]To distinguish between Andrew and John Commons, we refer to the father as Dr Commons and the son as Mr Commons.
[2]Patricia Commons, whom we refer to as Mrs Commons, is represented by a litigation guardian in these proceedings.
There are three pleaded causes of action. The first is that Dr Commons breached the moral duty he owed to Mr Commons in provisions of his will. The second and third challenge the actions of trustees of the estate.
Mr Commons sought disclosure of a wide range of documents relating to the estate, its financial position and benefits the respondents received from Dr Commons, both during his lifetime and subsequently from his estate.
In an interlocutory decision dated 27 March 2019, Associate Judge Sargisson ordered discovery of a subset of the documents Mr Commons sought, relating to:[3]
(a)documents identifying property in the estate;
(b)documents concerning the distribution of estate income to any beneficiary and the mix of investments undertaken with estate funds;
(c)documents identifying Mrs Commons’ exercise of her power as trustee since the appointment of the litigation guardian; and
(d)the estate’s financial statements.
[3]Commons v Commons [2019] NZHC 557 [Discovery judgment].
The Judge declined to order discovery of several other categories of documents that he had requested. As relevant to Mr Common’s application for leave, these were:
2. Documents identifying:
2.1Benefaction Jonne and/or Hamish received from [Dr Commons] while he was alive.
2.2Benefaction Jonne and/or Hamish received from trusts in relation to which [Dr Commons] had any power of trustee…

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 Commons v Commons

Details

AGLC: Commons v Commons [2020] NZCA 49
Case: [2020] NZCA 49
Decision Date: 11 March 2020 at 12.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Mr Andrew Commons against the decision of the High Court, which declined his application for leave to appeal. Mr Commons sought leave to appeal the High Court's interlocutory decision that declined his request for discovery of documents relating to his father's estate, which he claimed was relevant to his family protection claim under the Family Protection Act 1955. The first respondents are his father's widow (Patricia Commons) and two children (Hamish Commons and Jonne Willcox) from his father's second marriage, in their capacities as beneficiaries of his estate. Comac Trustees Ltd is also a party, along with Hamish Commons and Jonne Willcox, as trustees of the estate. The legal issues in this case revolve around the discovery of documents relating to the estate and the relevance of inter vivos gifts and trusts in the family protection claim. The Court of Appeal considered whether the High Court had erred in declining Mr Commons' request for leave to appeal the interlocutory decision. The Court found that there was no seriously arguable error of law in the High Court's decision. The Court held that the High Court had correctly applied the principles of discovery and that Mr Commons' request for discovery of documents relating to inter vivos gifts and trusts was not necessary for the family protection claim. The Court also found that the discovery relevant to the second and third causes of action did not raise any reasonably arguable question of law. The Court of Appeal declined Mr Commons' application for leave to appeal. The Court ordered that Mr Commons pay costs for a standard application on a band A basis and usual disbursements to each of the first respondents. The Court of Appeal's decision reinforces the principle that discovery should be limited to documents relevant to the issues in the case, and that inter vivos gifts and trusts are generally not relevant in family protection claims unless they have depleted the estate to the point that it may not be sufficient to meet the testator's moral duty.

Orders