Downey v Quirk - [2024] NZHC 578

[REDACTED JUDGMENT]

ORDER PROHIBITING PUBLICATION OF HIGHLIGHTED PARTS OF JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-737

[2024] NZHC 578

UNDER the Trusts Act 2019

IN THE MATTER

of the Estate of Peter Edward Culmer Read

BETWEEN

RICHARD WILLIAM DOWNEY as trustee of ST JOHN’S TRUST

Plaintiff

AND

TREVOR KINRED QUIRK as trustee and executor of the estate of PETER EDWARD CULMER READ

Defendant

Hearing: 11 March 2024

Appearances:

Mr Downey appears in person

H D P van Schreven and J D Kaye for Defendant

Judgment:

18 March 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 18 March 2024 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

DOWNEY v QUIRK [2024] NZHC 578 [18 March 2024]

[1] Mr Downey has brought this claim against Mr Quirk, who is the trustee and executor of the estate of Peter Read, to recover sums he says are owing for research services provided to Mr Read during his lifetime in relation to the settlement of Mr Read’s relationship property affairs and certain insurance claims following the Christchurch earthquakes.

[2] The proceeding was filed in October 2018 and has been set down for trial on three occasions. Presently it is due to be heard over five days commencing 29 April 2024. However, there is a history of Mr Downey failing to comply with pre-trial directions. Mr Downey has done so again, in that he has not exchanged his briefs of evidence, nominations for a draft chronology and index for the common bundle of documents as required by 12 January 2024.1

[3] Mr Quirk’s counsel, Mr van Schreven, raised concern about the breach of the timetable and I directed that both Mr Downey and Mr Quirk should file any applications they wished to make by 19 February 2024.2

[4]Mr Quirk has filed an application for an unless order.

[5]Mr Downey has filed applications for:

(a)adjournment of the trial;

(b)leave to bring interlocutory applications after close of pleadings date;

(c)further discovery and inspection of documents;

(d)an order that Mr Quirk attend for cross-examination; and

(e)that the Court reconsider an order made on 8 May 2023 denying the admission of a further affidavit from Mr Downey of an audio-recording as evidence of an alleged misrepresentation to the Court by Mr Quirk’s counsel.

1 Downey v Quirk HC Christchurch CIV-2018-409-737, 30 August 2023 (Minute).
2 Downey v Quirk HC Christchurch CIV-2018-409-737, 1 February 2024 (Minute).

[6] In a minute issued on 8 March 2024, I advised the parties that at the hearing scheduled for 11 March 2024 I would be dealing only with:

(a)the application for adjournment of the trial;

(b)the application by Mr Downey for leave to file further interlocutory applications after close of pleadings date; and

(c)the application by Mr Quirk for an unless order.

The application for an adjournment

[7] This proceeding has been beset by delays for several reasons. First, there have…

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 Downey v Quirk

Details

AGLC: Downey v Quirk [2024] NZHC 578
Case: [2024] NZHC 578
Decision Date: 18 March 2024

CaseChat Overview and Summary

The plaintiff, Richard Downey, sought an adjournment of the trial in Downey v Quirk. The defendant, Trevor Quirk, filed an application for an unless order. The proceeding between the parties had been ongoing since October 2018 and was scheduled to commence on 29 April 2024. The plaintiff sought the adjournment on the grounds of his ill-health, alleged deficiencies in the defendant's discovery, his intention to file further interlocutory applications, and claims of deliberate infliction of emotional distress by the defendant and his counsel. The defendant opposed the adjournment and the application for an unless order. The Court considered the application for adjournment and found that the plaintiff had not acted reasonably or done everything practicable to avoid the need for an adjournment. The Court held that the proceeding had been beset by delays and that it was long overdue for trial. The Court granted the application for an unless order and vacated the trial date, setting a new date of 22 July 2024. The Court also made a strict timetable and warned that if the plaintiff failed to comply with the directions his third amended statement of claim shall be struck out and judgment entered for the defendant. The Court granted the defendant's application for an unless order and awarded costs. The Court also made an order in the exercise of its inherent jurisdiction that there shall be no publication of any details contained in this judgment of the plaintiff's health issues.

Orders