Commons v Commons - [2019] NZHC 557

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000515

[2019] NZHC 557

BETWEEN
ANDREW HAMILTON JOHN COMMONS

Plaintiff

AND

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

Defendants

CIV-201-404-001057

BETWEEN

HAMISH JOHN COMMONS and JONNE BRYDE WILLCOX

Applicants

AND

HAMISH JOHN COMMONS, JONNE BRYDE WILLCOX and PATRICIA ANNE COMMONS

Respondents

Hearing: 19 November 2018

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:

27 March 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 27 March 2019 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

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

COMMONS v COMMONS & Ors [2019] NZHC 557 [27 March 2019]

Introduction

[1] These proceedings relate to the Will and estate of the deceased, Dr John Commons. They are brought by Andrew Commons, who is one of two sons of Dr Commons’ first marriage, against Dr Commons’ second family – his widow Patricia, and their children Hamish Commons and Jonne Willcox.

[2] The parties agree to tailored discovery, but have been unable to agree on the categories of documents to be discovered, with very limited exceptions. The plaintiff seeks orders.

[3] The principal issue in the proceedings is whether, in terms of Andrew’s first cause of action, Dr Commons breached the moral duty owed to Andrew pursuant to s 4 of the Family Protection Act 1955 when making provision for him in his Will. The second and third causes of action concern the actions of the trustees of the estate. The issues are, first, whether the trustees’ decisions are ultra vires on the basis that Dr Commons’ widow, as one of the trustees, has not properly participated in the decision making; and second, whether the distribution to the widow of the entire income earned on the estate’s investment fund is a perverse exercise of the trustees’ discretion, under the Will, to pay it to her or accumulate part of it as capital.

The dispute

[4] Andrew seeks discovery of ten categories of documents. They are wide-ranging and are set out in the schedule to this judgment. Most categories are disputed.

[5] At issue is whether the categories of discovery proposed by Andrew include documents of no relevance to the issues the Court must decide; or whether the discovery he seeks is disproportionate and unreasonable; or whether it is misdirected and ought be sought by non-party application.

Tailored discovery - the relevant principles

[6] The discovery regime in the High Court Rules is discussed by Asher J in Commerce Commission v Cathay Pacific.1 There is a specific requirement on the parties to co-operate with each other at an early stage to seek to achieve a consent position as to the scope and method of discovery. The parties must…

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 557
Case: [2019] NZHC 557
Decision Date: 27 March 2019

CaseChat Overview and Summary

This case concerns the estate of the late Dr John Commons and the distribution of his assets. The plaintiff, Andrew Commons, is one of Dr Commons’ two sons from his first marriage. The defendants are Dr Commons’ widow, Patricia Commons, and their children, Hamish Commons and Jonne Willcox. The primary issue is whether Dr Commons breached his moral duty under the Family Protection Act 1955 when making provision for Andrew in his Will. The secondary issues involve the trustees' decisions regarding the estate's income and capital distributions.

The court was tasked with determining the appropriate scope of tailored discovery in the case. The parties had agreed on tailored discovery but could not agree on the categories of documents to be discovered. Andrew sought discovery of ten categories of documents, most of which were disputed by the defendants. The court had to decide whether the proposed discovery categories were reasonable, proportionate, and relevant to the issues at hand.

The court held that the documents sought in relation to the first cause of action were not relevant to the assessment of Dr Commons' moral duty under the Family Protection Act 1955. The court found that a comparative approach, as proposed by Andrew, was not appropriate for evaluating the extent of the moral duty. Instead, the court considered that affidavit evidence from the principal beneficiaries, outlining their financial positions as at the date of Dr Commons' death, would be a proportionate means of informing the assessment and determination of any breach of moral duty.

Regarding the second and third causes of action, the court found that some of the proposed discovery categories were too broad and amounted to fishing exercises. However, the court ordered discovery of certain documents, including those relating to formal resolutions or related decisions from the appointment of the litigation guardian, documents relating to estate income paid to Mrs Commons, and the estate's financial statements.

In conclusion, the court ordered tailored discovery of specific documents and directed the defendants to provide affidavit evidence of their financial positions as at the date of Dr Commons' death. The parties were to agree on a timetable for these steps, with leave reserved if further directions were needed. Costs on the application were to lie where they fell, as no party had been entirely successful.

Orders