Connolly v Eckhout - [2021] NZHC 1400

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-000018

[2021] NZHC 1400

UNDER the Family Protection Act 1955

IN THE MATTER

of the estate of JAN DANIEL ECKHOUT

BETWEEN

MICHELLE LEE CONNOLLY
Plaintiff

AND

KAREN ELIZABETH ECKHOUT

Defendant

Hearing: 3 June 2021

Counsel:

SRG Judd for Plaintiff C Jiang for Defendant

Judgment:

15 June 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 15 June 2021 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Morrison Kent, Auckland. Glaister Ennor, Auckland. SRG Judd, Auckland.

CONNOLLY v ECKHOUT [2021] NZHC 1400 [15 June 2021]

A narrowing of issues after a blackening of character

[1] Jan Daniel Eckhout died 11 October 2017.1 Dan left almost all his estate to his wife, Karen Eckhout. Dan and Karen married 1994. Dan has five adult children and an adult stepdaughter from two earlier marriages.2 Michelle Connolly, one of Dan’s children, claims against his estate under the Family Protection Act 1955. The other children have been served with the claim but make no claim of their own.

[2] Michelle’s claim and Karen’s response have produced voluminous evidence— and much acrimony. The 900-page evidence bundle is replete with allegation; counter- allegation; material of marginal, if any, relevance; and emotive language. No one was mindful of Wild CJ’s admonition “that from the early days of the family protection jurisdiction the Court has disapproved attempts by litigants to blacken each other’s character”.3

[3] Fortunately, the issues narrowed as the hearing approached, and at the hearing itself. Karen now acknowledges Dan breached his moral duty to provide for Michelle. Michelle says the breach warrants an award of $850,000. Karen says that figure is unrealistic, and $228,000 would be “more than sufficient to repair any breach of moral duty”.

[4] The belated focus is welcome. It is reflected in this judgment, which is directed at quantum.

Background

[5] Dan was born 1943 in Natal, South Africa. Karen was born 1962 in New South Wales.

[6]In 1964, Dan married Sandra Smith. They had two children:

(a)Vanessa Tantum, born 1968.

1      Mr Eckhout was known as Dan Eckhout. With this exception, I use Christian names for convenience.
2      The children.
3      Re Meier (deceased) [1976] 1 NZLR 257 (HC) at 258.

(b)Michelle—the plaintiff—born 1971.

[7] Dan and Sandra divorced 1973. Thereafter, Michelle and Vanessa lived with their mother.

[8] In 1976, Dan married Jeanine Eckhout. Jeanine had an infant daughter from an earlier relationship, Melissa Allen. The same year, Dan, Jeanine and Melissa moved to Norway, where Dan worked on an oil rig. Dan ultimately became a drilling fluids engineer; hence family moves between Norway, England and Scotland.

Dan and Jeanine had three children:

(a)Nicola Schommer, born 1979.

(b)Gareth Eckhout, born 1981.

(c)Sean Eckhout, born 1984.

[10] Dan and Jeanine separated 1993. Jeanine returned to South Africa with the four children. Dan moved to Singapore.

[11] In 1993, Dan travelled to Perth for…

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 Connolly v Eckhout

Details

AGLC: Connolly v Eckhout [2021] NZHC 1400
Case: [2021] NZHC 1400
Decision Date: 15 June 2021

CaseChat Overview and Summary

The case of Connolly v Eckhout involves Michelle Lee Connolly, one of the children of the late Jan Daniel Eckhout, who brought a claim against her father's estate under the Family Protection Act 1955. The primary issue before the court was the determination of the appropriate quantum of damages to award Michelle, following the acknowledgment by the defendant, Karen Elizabeth Eckhout, that a breach of moral duty had occurred. Michelle sought an award of $850,000, while Karen argued that $228,000 would be more than sufficient to remedy the breach.

The High Court of New Zealand, in delivering its judgment, considered various factors including the close relationship between Michelle and her father, the intentions of Jan Daniel Eckhout to provide financial support, Michelle's financial needs, and the resources available to Karen through the estate and the now-dissolved Eckhout Family Trust. The court concluded that while Michelle's relationship with her father, his intentions, and her financial needs warranted an award greater than that offered by Karen, there were significant difficulties with Michelle's case for an award in the order of $850,000. The court decided to fix the award at $350,000, which it deemed to be the minimum required to remedy the breach of moral duty.

In terms of costs, the court ruled that Michelle's legal costs, approximately $95,000, would be met from the estate. The court found that Michelle was successful in her claim, and it was not persuaded to depart from the practice of ordering all of Michelle’s costs to be paid from the estate, given her success and the reasonable nature of her legal costs. The final orders of the court upheld Michelle's claim to the extent of $350,000, with her legal costs to be met from the estate.

Orders