Commons v Commons - [2019] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000515

[2019] NZHC 1850

BETWEEN
ANDREW HAMILTON JOHN COMMONS

Plaintiff

AND

HAMISH JOHN COMMONS, PATRICIA ANNE COMMONS, and JONNE BRYDE WILLCOX

Defendants

CIV-2018-404-001057

BETWEEN

HAMISH JOHN COMMONS and JONNE BRYDE WILLCOX

Applicants

AND

HAMISH JOHN COMMONS, JONNE BRYDE WILLCOX and PATRICIA ANNE COMMONS

Respondents

On the papers: 18 June 2019

Appearances:

Plaintiff in Person

R J Brown for Defendant Trustees in CIV-2018-404-1057

K Muir and C Chung for the Defendants (as beneficiaries), and for the Applicants in CIV-2018-404-1057

R Von Keisenberg and K Mortimer for Susan Axford (litigation guardian for Patricia Commons)

Judgment:

1 August 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 1 August 2019 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

COMMONS v COMMONS [2019] NZHC 1850 [1 August 2019]

Introduction

[1]The proceeding concerns the estate of the late Dr John Commons.

[2] On 27 March 2019 I issued a judgment on the application made by Andrew Commons, the plaintiff, for tailored discovery.1 The judgment declined to order tailored discovery for a number of the categories of documents sought in the discovery application. Andrew Commons now seeks leave to appeal that judgment.

[3] The application for tailored discovery was made against all the defendants. They are the members of Dr John Commons’ second family, and the trustees of his estate. They are also the primary beneficiaries under the will. Andrew Commons is another of the beneficiaries. The tailored discovery sought from John’s second wife, Patricia Commons, and the children of John and Patricia’s marriage (Hamish Commons and Jonne Wilcox) in their dual capacity as trustees of the estate and beneficiaries was extensive and said to be relevant to issues in the then pleadings. The relevant statement of claim is the first amended statement of claim which relied on three causes of action; the first was under s 4 of the Family Protection Act 1955; and the second and third concerned the actions of the trustees of the estate.

[4] In the discovery judgment I ordered the defendants to provide affidavit evidence setting out proper statements of their financial positions as at the date of John Commons’ death, as well as tailored discovery of:

(a)documents identifying the estate property and its value;

(b)documents in relation to trustee decisions and/or directions relating to distribution of income from the estate to any beneficiary and the mix of investments to be undertaken with estate funds;

(c)documents identifying the extent, if any, of Patricia’s exercise of her office as trustee under the will from the date of the appointment of her litigation guardian; and

1 Commons v Commons [2019] NZHC 557.

(d)the estate’s financial statements.

[5]The other tailored discovery sought was declined.

[6] Not long after the judgment was issued – 15 April 2019 – Andrew filed a further amended statement of claim. This judgment does not deal with any new…

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 [2019] NZHC 1850
Case: [2019] NZHC 1850
Decision Date: 1 August 2019

CaseChat Overview and Summary

The proceeding concerns the estate of the late Dr John Commons. The plaintiff, Andrew Commons, has applied for leave to appeal the decision on an application for tailored discovery against the defendants, who are the members of Dr John Commons’ second family and the trustees of his estate. The first cause of action is under the Family Protection Act 1955, and the second and third concern the actions of the trustees of the estate. The plaintiff argues that the discovery judgment was in error in declining to order tailored discovery of certain categories of documents relevant to the issues in the pleadings. The court considered the arguments and found that there was no sufficient basis for the application for leave to appeal. The court was not satisfied that there were any arguable errors of law or fact in the judgment in dealing with inter vivos gifts and trusts to the second family members. The errors alleged were not of public or general importance and were not otherwise of such importance to Andrew’s case as to outweigh the lack of general importance and the cost of the appeal and further delay to the proceeding. The application for leave to appeal is declined.

Orders