Cruickshank v Martin HC Auckland CIV-2006-404-4519
[2007] NZHC 1849
•15 June 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2006-404-4519
BETWEEN ROBERT MONSON CRUICKSHANK Plaintiff
AND HELEN DOROTHY MARTIN AND JOHN LEWIS MANSFIELD Defendants
Hearing: 1 May 2007
Appearances: D R I Gay for Plaintiff
H Fulton for Defendants (as Executors)
Judgment: 15 June 2007
In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4.45pm on the 15th day of June 2007.
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
Introduction
[1] Before the Court are two applications.
[2] The first filed on 17 November 2006 is an application by the defendant trustees for further and better particulars of the plaintiff’s Statement of Claim, or alternatively an order to answer interrogatories. In addition, an order to strike out certain paragraphs of the Statement of Claim is sought.
[3] The second application also filed on 17 November 2006 is by the first-named defendant Mrs Martin in her personal capacity. It also seeks further and better particulars of the plaintiff’s Statement of Claim, and an order striking out parts of the
claim.
CRUICKSHANK V MARTIN AND MANSFIELD HC AK CIV-2006-404-4519 15 June 2007
[4] In each case the applications are opposed by the plaintiff.
Background Facts
[5] Kay Cruickshank (“the deceased”), the aunt of the plaintiff, died in Auckland on 29 August 2005 aged 85 years.
[6] The deceased was never married and had no children.
[7] According to the plaintiff, the first-named defendant (“Mrs Martin”) from about the mid 1980’s was an acquaintance and friend of the deceased. From June
2003, the second-named defendant Mr Mansfield was the solicitor for both the deceased and for Mrs Martin. He is now employed as a law clerk however.
[8] In the years prior to her death the deceased executed a number of wills and codicils. In particular:
a) On 17 November 1980 she signed a will and on 7 June 1990 a codicil to this will.
b) On 8 April 2003 she signed a will. c) On 30 June 2003 she signed a will. d) On 11 May 2004 she signed a will.
e) On 2 May 2005 she signed her last will.
[9] On 23 September 2005, probate of the last will dated 2 May 2005 (“the will”) was granted in the High Court at Auckland in common form in favour of the defendants as executors and trustees.
[10] According to the plaintiff, during the last years of her life from about mid-
2002 the deceased suffered from senile dementia and/or Alzheimer’s Disease and did not have full grasp of her mental faculties. Her dementia involved, amongst other
things, memory loss and general disorientation and an MRI scan in April 2002 according to the plaintiff had revealed widespread brain damage severely affecting her cognitive skills. Around the end of May 2005 she apparently suffered a severe stroke which led to her death on 29 August 2005.
[11] At the time of execution of the will the plaintiff contends that the deceased did not have testamentary capacity, her will was overborne by Mrs Martin and the will itself contained irregularities of form. Indeed the plaintiff maintains that from about the late 1990s the deceased came under the influence of Mrs Martin to such an extent that the wills signed by her during and after 2003 were made under the undue influence of Mrs Martin.
[12] In his first cause of action in this proceeding the plaintiff seeks to have set aside the last four wills of the deceased (dated 8 April 2003, 30 June 2003, 11 May
2004, and 2 May 2005) alleging that either:
a) At the time the wills were made the deceased lacked testamentary capacity; and/or
b) The wills were made under the undue influence of and/or as a result of the unconscionable conduct of Mrs Martin.
[13] Instead, the plaintiff seeks to have the will dated 17 November 1980 and its codicil dated 17 June 1990 probated.
[14] In the second cause of action in his statement of claim the plaintiff alleges undue influence and unconscionable conduct, and states that on 16 June 2003 the deceased granted to Mrs Martin an enduring power of attorney in circumstances where that transaction and subsequent bank withdrawals and “gifts” of property to Mrs Martin were unconscionable bargains and are vitiated for undue influence. An order is sought setting aside the power of attorney transaction, and the bank withdrawals and “gifts”, and requiring Mrs Martin to account to the deceased’s estate for the property received or which ought to have been received to the benefit of the estate from these transactions.
[15] In addition, in the plaintiff’s third cause of action in his statement of claim he pleads that a testamentary promise was made to him by the defendant in that during her lifetime she made certain promises to him that in recognition of his services to her she would make substantial provision for the plaintiff in her will.
[16] As to this, the plaintiff contends:
a) Around 1983 the deceased promised that she would leave the bulk of her estate comprising a residence valued at approximately $1.1 million and an investment fund of approximately $100,000.00 entirely to the plaintiff.
b) About 1988 when the plaintiff installed a new interior wall and sandstone fireplace in the deceased’s residence, she confirmed to the plaintiff her “wish” that the plaintiff would receive her residence upon her death.
c) In September 1998 when the deceased sold her Parnell house property, she promised the plaintiff that she would execute a codicil to ensure the plaintiff inherited her entire estate because her existing will had provided that her “principal place of residence” would be bequeathed to the plaintiff, and as this was now sold she would be living at a smaller residence in Parnell and would have an investment of approximately $600,000.00.
d)Around 4 April 2003 after the deceased had declined an offer to invest in a company venture undertaken by the plaintiff, the deceased confirmed that the plaintiff would be receiving all her estate with the exception of small gifts of jewellery, and a painting, and a small bequest to Mrs Martin.
[17] In his statement of claim the plaintiff maintains that he also rendered significant services for the benefit of the deceased during her lifetime. Details of these are set out at some length in para (17) of the statement of claim.
[18] Finally in his fifth cause of action the plaintiff brings a claim for tracing which includes an allegation that Mrs Martin received property of the deceased into her hands in her personal capacity and now holds such property under a constructive trust in favour of the estate. Orders for tracing, repayment and re-transfer of the property in questions are sought.
Applications for further and better particulars
[19] I turn first to consider the applications for further and better particulars of the plaintiff’s statement of claim brought by the defendants. These applications are made in reliance upon Rules 108 and 185 High Court Rules. McGechan on Procedure at HR185.01 notes the purpose of pleadings from Farrell v Secretary of State [1980] 1 All ER 166 (HL) at p173 as:
The primary purpose of pleadings…is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.
[20] The relevant legal principles regarding the purpose, and particularisation, of pleadings are uncontroversial. The object of a statement of claim is to “state” the “claim” in each case, so that the Court has sufficient clarity and detail to understand the issues it has to rule on, and the defendant knows the case which is to be met and is able to prepare for trial: Price Waterhouse v Fortex Group Limited (Court of Appeal, Wellington, CA179/98, 20 November 1998, Blanchard, Tipping and McGechan JJ at 18).
[21] Rule 108(b) specifically requires that a statement of claim shall give such particulars “…of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances as may suffice to inform the Court and the party or parties against whom relief is sought of the plaintiff’s cause of action”.
[22] And it is a particular requirement of Rule 108 that a Statement of Claim must set out the factual circumstances relied upon giving rise to each cause of action alleged and the relief claimed as a consequence - McGechan HR108.04.
[23] For present purposes the following points are important:
a) The nature and level of the particulars required will depend on the facts of the individual case: Commerce Commission v Qantas Airways Ltd (1992) 5 PRNZ 227 at 230.
b) “Particulars ordered under r 185 are to be distinguished from interrogatories obtainable under r 278. Particulars are matters of pleading, designed to make plain to the opposite party the case to be raised. Interrogatories are sworn statements of face, procured by the opposite party to assist that party in proving his or her case. The one is pleading; and the other proof……Where a statement of claim is sufficiently particular, a Court may not order further particulars but may allow interrogatories : Corporation of Dunedin v Booth (1908)
10 GLR 695 at 696”. – McGechan on Procedure at HR.185.04.
[24] Factors which the Courts have viewed as relevant when considering whether further particulars are necessary include:
a) Has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond? Price Waterhouse v Fortex Group Limited.
b) Is there a real risk that the other party may face a trial by ambush if the further particulars are not provided? Price Waterhouse v Fortex Group Limited. Trial by ambush has long gone out of fashion – Donovan v Graham (HC AK, 22 May 1990, CP1908/89, Eichelbaum CJ).
c) Is the request an unreasonable burden or oppressive for the party concerned? Commerce Commission v Telecom Corporation of New Zealand Ltd & Anor (High Court, Auckland, CIV-2004-404-1333, 21
December 2004, Rodney Hansen J).
[25] And finally and importantly, a request for further particulars can be resisted if the request goes beyond the scope of particulars, and is probing for evidence – McGechan HR108.05.
[26] I turn now to consider those parts of the plaintiff’s pleading in his statement of claim of which the defendants complain.
Paragraph 8(a)
[27] This pleading relates to the plaintiff’s claim that the deceased did not have testamentary capacity. From the statement of claim it follows that the plaintiff pleads the deceased’s mental incapacity arose from:
a) Her stroke in 2002 which occurred when she was 82, her declining health and her other medical conditions that existed at and developed after 2002.
b) Those medical conditions (senile dementia and/or Alzheimer’s
Disease).
c) Her severe stroke at the end of May 2005 which led to her death approximately 12 weeks later.
[28] As a result the plaintiff pleads that the deceased did not have full grasp of her mental faculties and with the deterioration in her health condition since mid-2002 subsequently her judgment was impaired, and she was not able to exercise independent and informed judgment.
[29] The particulars of this para 8(a) of the statement of claim sought by the defendants are set out in the application in the following way:
As to paragraph 8(a) of the First Amended Statement of Claim:
• Give the facts and circumstances relied upon for the allegation the testatrix did not have testamentary capacity.
• Specify whether it is alleged the testatrix lacked testamentary capacity continuously or for the periods thereof.
• Specify whether it is alleged the testatrix lacked testamentary capacity episodically and in that event the nature, duration and periods thereof.
[30] As to these aspects, counsel for the defendants notes the provisions in r 641(3) High Court Rules which apply here (this being in part an application for recall of a grant of probate issued in common form in terms of r 650). Rule 641(3) which relates in part to applications for recall of probate states:
(3) Nor shall it be sufficient [in a proceeding under r 650] to allege merely that at the time when the will was executed the testator did not have testamentary capacity, without specifying whether the incapacity consisted in lack of ability to comprehend or recollect the extent of his property and the claims of persons excluded from participation therein or in insane delusions affecting persons having claims on his bounty, or otherwise specifying the nature of the incapacity.
[31] In addition, counsel for the defendants referred to r 181(2) High Court Rules which states:
(2) Where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention, or other condition of mind except knowledge, the party pleading shall give particulars of the facts on which that party relies in alleging that condition of mind.
[32] With these provisions in mind, the defendants’ complaint is that the allegations made in para 8(a) of the plaintiff’s statement of claim are simply too broad and general to focus attention on the real issues to be determined in this case. Further, the defendants contend that the statement of claim is silent on whether the alleged incapacity of the deceased is continuous over the three year period from
2002 to 2005 or episodic as to each of the four wills in this period, and that this needs to be remedied.
[33] In the present case it is my view that the plaintiff’s pleadings in this para 8 in relation to the deceased’s lack of testamentary capacity are sufficient to inform the Court and the defendants plainly of the case they have to meet. In terms of both r 181(2) and r 641(3) I am satisfied that the plaintiffs have done enough here in pleading that the testatrix did not have testamentary capacity by reference to the
deceased’s stroke in 2002, her declining health, her senile dementia and/or Alzheimer’s Disease, her other medical conditions and her later stroke at the end of May 2005. As I see it in terms of r 641(3) this pleading is at least sufficient to “otherwise specify the nature of the deceased’s incapacity”, and in terms of r 181(2) it does give adequate particulars of the facts on which the plaintiff relies in alleging the deceased’s condition of mind.
[34] Several of the specific requests for additional particulars noted at para [29] above also appear to relate to questions as to whether the deceased either lacked testamentary capacity continuously or only for certain periods. As I see it these are finer details of evidence which first, may well be within the knowledge of the defendant Mrs Martin herself, and secondly, in any event will be matters of evidence for trial.
[35] The defendants’ request for further particulars of para 8(a) of the plaintiff’s statement of claim is therefore rejected.
Paragraph 9
[36] This pleading alleges that the deceased lacked testamentary capacity at the time she executed the last four wills she signed –that is, 8 April 2003, 30 June 2003,
11 May 2004 and 2 May 2005.
[37] The plaintiff’s pleading as to the deceased’s mental incapacity and her medical conditions is noted above at paras [27] and [29]. It is provided for in para 7,
8(b)(2) and (3) of the amended statement of claim.
[38] The request for further particulars of this paragraph 9 by the defendants repeating as it does the further particulars sought regarding para 8(a) but related to the dates each of the last four wills were signed, adds nothing here. For the reasons outlined at paras [33]-[35] of this judgment I reject this request. And again, at best I note the defendant’s request here appears to be probing for evidence.
[39] The plaintiff’s statement of claim in this paragraph 9 is able to be pleaded to. The request for further particulars of para [9] of the amended statement of claim fails.
Paragraph 12
[40] This paragraph in the Amended Statement of Claim states:
(12) The power of attorney dated 16 June 2003 was given in favour of Mrs Martin without consideration, and without the Deceased taking or being offered legal advice or adequate and independent legal advice, and at a time when the deceased was suffering from mental weakness and Alzheimer’s disease, to the knowledge of Mrs Martin who took the benefit of the documents.
Particulars
(i) The plaintiff refers to the particulars of the Deceased’s physical and mental condition, her weakness and dependency, and the relationship between her and Mrs Martin that have been given at para 8(a) and (b) above.
[41] The particulars requested by the defendant trustees relating to this paragraph are to:
(a) Specify the consideration for the Power of Attorney that was allegedly not given and the consideration that it is alleged should have been given; and
(b) Give details of the legal advice given or that should have been given.
[42] As to the issue of consideration, the plaintiff’s amended statement of claim does allege that no consideration was given. In my view this is adequate and it is sufficient for the defendants to plead in response.
[43] With regard to the question of legal advice, the plaintiff’s Amended Statement of Claim alleges that no legal advice or adequate and independent advice was given. Again this seems to be a matter which is entirely
within the knowledge of the defendants – in this case probably the trustee and solicitor, Mr Mansfield.
[44] In my view it is not necessary for any amendment to this pleading to be made, therefore, with respect to the issues of whether legal advice or alternatively, adequate and independent legal advice, was provided at the appropriate time.
[45] So far as Mrs Martin’s application for further particulars is concerned, it seems that with regard to this paragraph 12 she raises three main issues. The first requests particulars of how the plaintiff alleges she had knowledge of the deceased’s incapacity, her mental weakness and Alzheimer’s disease. Again, these matters are entirely within the knowledge of the defendant Mrs Martin herself. In addition, her complaint may overlook the exception in r 181(2) of “knowledge” from the obligation on a party pleading conditions of mind of any person to give particulars of the facts on which that party relies in alleging the conditions. It would be seem to be sufficient that knowledge on the part of Mrs Martin has been pleaded – Fox v H Wood Harrow Ltd [1962] 3 All ER 1100.
[46] As to the complaint by Mrs Martin that this paragraph 12 does not but should allege whether the Power of Attorney was effective or ineffective, it seems to me that this need not be pleaded – r 184. And, in any event, the plaintiff in his Amended Statement of Claim does at paragraph 13 does go on to plead that the transaction involving the giving of the Power of Attorney was an unconscionable bargain and vitiated for undue influence.
[47] Thirdly, Mrs Martin complains that very serious allegations are made against her in order to support a claim not only to set aside four wills but also the Power of Attorney. Her counsel argues that these are allegations in the nature of fraud and must be fully and carefully particularised – Connell v NZI Securities Asia Ltd (1995)
9 PRNZ 36. In my view this misses the point. This is not a fraud case and the allegations of undue influence generally concern the deceased’s mind and mental condition (and her impairment of judgment) and not the conduct of Mrs Martin. The suggestion that the allegations against Mrs Martin are serious and must be fully
particularised misunderstands the type of enquiry that the Court will conduct regarding the undue influence claim – Carey v Norton [1998] 1 NZLR 661.
[48] The defendants’ request for further particulars of paragraph 12 therefore fails.
Paragraph 14
[49] In this paragraph the plaintiff pleads that the deceased made certain promises to him to make provisions for his benefit in her will.
[50] In relation to paragraph 14)(a) the plaintiff’s amended claim clearly states:
“(a) In about 1993, at the offices of Bradley Gardiner and O’Neill, Financial Planners, the deceased orally promised to the plaintiff in the company of Mr Bradley that after providing bequests of jewellery for her god-daughter Sue O’Hagan, and her two sisters Caroline and Rosemary, her estate (which then compromised a residence to the value of approximately $1.1 million, and an investment fund of approximately $100,000) would be given entirely to the plaintiff.”
[51] The defendants’ request in their present application that the plaintiff should specify the terms of the promise alleged.
[52] This matter is quickly disposed of. In my view the pleading in paragraph 14(a) is clear. It refers to the oral promise made by the deceased and effectively the words used:
“…that after providing bequests of jewellery for her god-daughter Sue O’Hagan and her two sisters Caroline and Rosemary, her estate (which then compromised a residence to the value of approximately $1.1 million and an investment fund of approximately $100,000) would be given entirely to the plaintiff.”
[53] As I see it, this makes clear to the defendants this aspect of the case which they are facing, and they are well able to take steps to respond.
[54] The request from the defendants for further particulars of paragraph 14(a)
fails.
[55] I turn now to paragraph 14(b) of the Amended Statement of Claim. This again relates to promises said to be made by the deceased to the plaintiff during her lifetime. It states:
“(b) In about 1988 upon the plaintiff installing and completing a new interior wall and a sandstone fireplace in the deceased’s residence, the deceased confirmed to the plaintiff her ‘wish’ that the plaintiff would receive her residence upon her death.”
[56] Again, the present application for further and better particulars requires the plaintiff to “specify the terms of the promise alleged” in this paragraph.
[57] As I see it, again this matter is quickly disposed of. The terms of the promise are made clear in the words “the plaintiff would receive her residence upon her death”.
[58] In my view the defendants are quite able to provide a pleading in response to this. No further particulars are required here. The application with respect to this paragraph 14(b) also fails.
Paragraph 14(c)
[59] This paragraph reads:
“Upon the sale of the deceased’s Glanville Terrace Parnell property at auction in September 1998, or shortly thereafter, the deceased orally promised to the plaintiff that she would then execute a codicil to ensure that the plaintiff inherited her entire estate, because her then existing will had provided that her ‘principal place of residence’ would be bequeathed to the plaintiff, but now that was sold, she would be living at her new (and smaller) residence at 3 Litchfield Street, Parnell (‘the home’), and would have an investment of approximately $600,000.”
[60] Before me Mr Bright, counsel for Mrs Martin, accepted that the particulars with respect to paragraph 14(c) were sufficient.
[61] Mr Fulton, counsel for the defendant trustees, however, pursued the request for particulars regarding this paragraph. His complaint appears to be that the defendants need to know as accurately as possible what were the precise words of the deceased in making this promise upon which the plaintiff relies.
[62] In response, Mr Gay for the plaintiff again noted that this paragraph 14(c)
states clearly the fact and terms of the promise in the following way:
“The deceased orally promised to the plaintiff that she would then execute a codicil to ensure that the plaintiff inherited her entire estate….”
[63] Paragraph 14 (c) then went on to set out the reasons why the deceased had made this promise – she had traded down her principal place of residence and wanted the plaintiff to have her resulting investment as well as her new house.
[64] I take the view that the particulars provided in this paragraph 14(c) are clear and sufficient here. The defendants’ application for further particulars related to this paragraph 14(c) therefore fails.
Paragraph 14(d)
[65] In this paragraph the plaintiff states:
“(d) On or about 4 April 2003, at the Deceased’s apartment at
3 Litchfield Road Parnell, after the Deceased had declined an offer
to invest $50,000 in his company venture styled Bioneutral, the Deceased confirmed and promised to the plaintiff that the plaintiff would be receiving all her estate, with the exception of gifts of her jewellery to her god-daughter Sue O’Hagan, and her two sisters Caroline and Rosemary, and a painting to her friend Helen Guthrie, and a small bequest to Mrs Martin.”
[66] As to the defendants’ request to specify the terms of the promise alleged in this paragraph, as I see it the plaintiff clearly pleads that:
“The deceased confirmed and promised to the plaintiff that the plaintiff would be receiving all her estate with the exception of gifts of her jewellery…and a painting…and a small bequest.”
[67] Again, I am satisfied that this is adequate and no further particulars should be ordered.
[68] The defendants’ application with regard to paragraph 14(d) does go on to request additional matters:
“particulars of the entity ‘Bioneutral’ in respect of which the plaintiff offered an investment of $50,000”, “particulars of the offer made to the testatrix and
to third persons to invest” and “particulars of why and in what terms the testatrix and others declined the offer”.
[69] As to these aspects, according to the plaintiff the venture styled “Bioneutral” was referred to in the plaintiff’s Amended Statement of Claim because the defendants requested the name of the venture in an earlier first request and this was supplied. The plaintiff’s position is that the investment, details pertaining to it and what may have been proposed by the plaintiff to the deceased had nothing to do with the fourth promise made by her except so far as to provide the temporal context when this fourth promise was made.
[70] In my view there is substance in this contention. The request by the defendants for further details of “Bioneutral” as I see it is quite unnecessary for pleading purposes and details of the Bioneutral investment offered forms no part of the factual basis of the deceased’s promise.
[71] I reject the defendants’ request for further particulars of this paragraph 14(d).
Paragraph 15
[72] The plaintiff’s Amended Statement of Claim at paragraph 15(c) alleges that the plaintiff provided services for the defendant during her lifetime and that in terms of the Law Reform (Testamentary Promises) Act 1949 an order in his favour is warranted in part in recognition of the services rendered by the plaintiff to her.
[73] Details of the services are set out at some length at paragraph 15 and they include an allegation by the plaintiff that he assisted the deceased with her financial affairs and introduced her to professional financial planners and drove her to and from those appointments. The further particulars sought by the defendant trustees in their application relating to what financial and investment advice was given by the plaintiff to the deceased can only be seen as conjectural on the part of the defendant estate as it is not pleaded.
[74] Further, there is substance in my view in the argument advanced before me by counsel for the plaintiff that these matters may be irrelevant and in any event are matters of evidence and not matters of pleadings.
[75] It may well be that the professional financial planners who were instructed by the deceased may, themselves, be able to provide the information sought by the defendant estate. The relevance of this information, however, might be questionable.
[76] Suffice to say that no order is to be made here with respect to these particulars.
[77] The application by the defendant trustees goes on to request
“…particulars of all benefits, advantages or profits the plaintiff received from the testatrix or received by the plaintiff as a consequence of the actions of the testatrix.”
This is not a matter pleaded by the plaintiff and as I see it is a matter which ultimately may be considered as the subject of interrogatories. It is not the subject of an appropriate particulars request here.
[78] Finally, the defendant trustees seek “particulars of the facts and circumstances of the appointment by the deceased of the plaintiff as her Attorney dated 25 April 2003 and trustee of her will dated 8 April 2003.”
[79] In referring to these facts in paragraph 15(i) of his Amended Statement of Claim the plaintiff perhaps is indicating implicitly that in undertaking these roles he provided a service.
[80] I am satisfied that the defendants are properly able to plead to this statement made by the plaintiff. In any event, if this question is seen ultimately to be appropriately raised by the defendants, then, in my view it might at best be the subject of interrogatories rather than a further particulars request.
[81] The application by the defendant trustees for further particulars of this paragraph 15 of the Amended Statement of Claim also fails.
[82] It will be apparent therefore that each of the applications by the defendants and by Mrs Martin for further and better particulars of the plaintiff’s statement of claim has failed.
Interrogatories
[83] I turn now to consider the application noted in paragraph 2 of the defendant trustees’ 17 November 2006 application which seeks in the alternative:
“2. ….an order that the plaintiff file and serve on the defendants and the persons ordered to be served a statement verified by affidavit as answers to interrogatories as referred to in the Schedule hereto.”
[84] This application seeks an order to answer interrogatories as an alternative to any matter referred to as a particular by the defendants in their Schedule should it be regarded as evidence.
[85] So far as interrogatories are concerned, generally a notice requiring interrogatories to be answered may only be served after the statement of defence has been filed – McGechan on Procedure HR278.04. In the present case, no statement of defence to the plaintiff’s Amended Statement of Claim has been filed by the defendant trustees.
[86] Here, however, the interrogatories application by the defendant trustees specifies that it is made in reliance upon r 282 High Court Rules. This rule states:
“282. Order to answer
(1) The Court may, at any stage of any proceeding, order any party to file and serve on any other party (whether the interrogating party or not) –
(a) A statement in accordance with rule 283 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceeding; or
(b) A statement as mentioned in paragraph (a) verified by affidavit.
(2) The Court shall not make an order under subclause (1) unless satisfied that the order is necessary at the time when the order is made.”
[87] This r 282 is clearly wider than r 278. It enables the Court to order any party to answer interrogatories at any stage of the proceedings and not only once a defendant has filed a statement of defence – see McGechan HR282.02.
[88] In the present case it is clear that the defendants have not issued a notice to the plaintiff to answer interrogatories under r 278. The current interrogatories application before me as I see it is effectively “tacked on” to the defendant trustees’ particulars application.
[89] This is borne out by the fact that little argument was advanced before me at the hearing with respect to this question of interrogatories.
[90] That said, in my view the appropriate course here is for a statement of defence to be filed and then for the defendant trustees to issue to the plaintiff a notice to answer specific interrogatories in terms of r 278 if indeed interrogatories are sought.
[91] I find therefore that under the present circumstances, it is not appropriate at this stage for the Court to make an order to answer interrogatories pursuant to r 282.
[92] The defendant trustees’ application pursuant to r 282 therefore fails.
Strike-out application
[93] In the application by the defendant trustees an order is sought that paragraphs
17 and 18 together with the prayer for relief to the fifth cause of action in the plaintiff’s statement of claim be struck out.
[94] Paragraphs 17 and 18 of the Amended Statement of Claim read:
“17. The defendants have received property of the deceased into their hands as Executors and Trustees of the Deceased’s estate, and accordingly hold such property in trust for the estate.
PARTICULARS
(1) The plaintiff refers to all property of the Deceased, as at the date of her death, full particulars whereof will be given upon
the trustees giving discovery of their accounts and administration of the estate of the deceased.
18.Mrs Martin has received property of the deceased into her hands in her personal capacity, and now holds such property under a constructive trust in favour of the estate.
PARTICULARS
(1) The plaintiff refers to all property of the deceased received into the possession of Mrs Martin after the death of the deceased, full particulars whereof will be given upon the trustees giving discovery of their accounts and administration of the estate of the Deceased.
[95] As to the prayer for relief to the fifth cause of action the plaintiff seeks an order tracing property of the deceased into the hands of both the defendant trustees, and Mrs Martin in her personal capacity and orders that the parties deliver up and repay all property received by them.
[96] As to these paragraphs 17 and 18 and the prayer for relief counsel for the defendant trustees contends there is no cause of action properly pleaded in these paragraphs. His argument follows that the defendant trustees are the “estate” and it cannot be in question that their possession of, or assumption of control over, the deceased’s property is other than in pursuance of the administration granted to them and the trusts arising therefrom.
[97] Whilst there may be something in that argument advanced by Mr Fulton on behalf of the defendant trustees, it does not address the position of Mrs Martin in her personal capacity noted at paragraph 18 of the Amended Statement of Claim. This paragraph pleads that Mrs Martin has received property in her personal capacity and holds such property under a constructive trust in favour of the estate and therefore orders for tracing or delivery up of these items is appropriate.
[98] In addition, and in any event, if it does transpire that the Court ultimately finds the deceased lacked testamentary capacity, or alternatively undue influence or unconscionability applies such that the later four wills of the deceased (noted at paragraph [8] hereof) are set aside in favour of the will dated 17 November 1980, then the tracing and delivery up orders sought against the defendant trustees may well be appropriate.
[99] Given that the authorities establish that on a strike-out application a defendant must show that the plaintiff’s cause of action is so clearly untenable that it could not possibly succeed (Attorney-General v Prince and Gardner [1998] 1 NZLR
262 (CA) and Takaro Properties Ltd v Rowling [1987] 2 NZLR 314) and that the strike-out jurisdiction is one to be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37), in the present case the defendant trustees’ application to strike out these paragraphs 17 and 18 and the prayer for relief in the fifth cause of action must fail.
[100] Turning now to the application by the defendant Mrs Martin in her personal capacity for strike-out orders, these are sought with respect to the following aspects of the Amended Statement of Claim:
“(a) Under the heading in bold ‘Second Cause of Action’ strike out the words ‘and unconscionable conduct’;
(b) Paragraph 12;
(c) Paragraph 13(a);
(d) The prayer for relief under paragraph 13 being the prayer for relief
(b);
(e) The plaintiff’s third cause of action (testamentary promise) by the deletion of paragraphs 14, 15 and 16 and the prayer for relief thereafter; and
(f) Under the heading ‘Fifth Cause of Action – Tracing’ delete the reference in line 4 to unconscionability.”
[101] The first aspect of these complaints from Mrs Martin appears to be in relation to the Enduring Power of Attorney given by the deceased to her. Essentially, she appears to be seeking that any reference to this Power of Attorney transaction being “an unconscionable bargain” or to there being in contemplation any “unconscionable conduct” should be struck out.
[102] As I understand her argument it is that these pleadings include associated allegations of dishonesty on the part of Mrs Martin and as this is a grave claim it must be pleaded clearly and with particularity. The plaintiff must make these aspects clear when dishonesty is alleged.
[103] In my view these contentions miss the mark here. At paragraph 13 of his statement of claim the plaintiff pleads simply that the Power of Attorney transaction was an unconscionable bargain and was vitiated for undue influence. As I see it, with respect to whether these conclusions may be properly reached are matters of law to be determined at trial. And the allegations of undue influence and unconscionable bargain generally concern the deceased’s mind and mental capacity.
[104] The plaintiff pleads that Mrs Martin was an acquaintance of and knew the deceased from the mid-1980’s. He contends the Power of Attorney was given without legal advice and at a time when the deceased was suffering from mental incapacity. And these aspects may well become clearer once the defendant trustees plead to the Amended Statement of Claim and discovery is provided.
[105] In my view, taking into account the strict test for a strike-out that I have noted, a Court must be satisfied the causes of action are so untenable that they could not succeed, then Mrs Martin’s strike-out application here with respect to these aspects of paragraphs 12 and 13, together with the heading for the second cause of action in the Amended Statement of Claim cannot succeed.
[106] The second complaint from Mrs Martin in her strike-out application relates to paragraphs 14, 15 and 16 and the following prayer for relief.
[107] Paragraphs 14, 15 and 16 relate to the plaintiff’s testamentary promises pleading under the Law Reform (Testamentary Promises) Act 1949. The order sought in the prayer for relief is an order under that Act.
[108] Here, I am at a loss to understand the basis upon which Mrs Martin seeks to have these pleadings struck out. As I have noted above, these paragraphs set out the promises said to be made by the deceased, together with some detail as to the services the plaintiff maintains he provided for the defendant during her lifetime.
[109] Again, I am satisfied that the defendant Mrs Martin has failed to show that these causes of action are so clearly untenable that they could not possibly succeed.
[110] It follows therefore that Mrs Martin’s strike-out application relating to these aspects of the statement of claim fails.
Conclusion
[111] For the reasons I have outlined above the application by the defendant trustees for further and better particulars of the plaintiff’s statement of claim, for an alternative order to answer interrogatories and for an order to strike out certain paragraphs of the plaintiff’s Amended Statement of Claim fails.
[112] Further, the application by the defendant Mrs Martin in her personal capacity for further and better particulars of the plaintiff’s statement of claim and for an order striking out certain parts of the claim also fails.
[113] As to costs, as the plaintiff has been successful in opposing these applications he is entitled to an order for costs which are awarded against both the defendant trustees and against the defendant Mrs Martin in her personal capacity on a category
2B basis together with disbursements as fixed by the Registrar.
……………………………….. Associate Judge D.I. Gendall
Solicitors:
Alan Jones Law Partnership, P O Box 717, Auckland for Plaintiff
Newmarket Law, P O Box 99633, Newmarket for Defendants
Johnston Prichard Fee & Partners, P O Box 1115, Auckland for H D Martin
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