Legal Research
Cases
Du Preez v Kelly

Du Preez v Kelly

Case [2024] NZHC 507 11 March 2024

Standing

Abuse of Process

Discovery & Disclosure

Res Judicata

Issue Estoppel

Contract Formation

Civil Litigation & Procedure

Contract Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-562

CIV-2022-085-751 [2024] NZHC 507

BETWEEN
WILLEM DU PREEZ

First Plaintiff

GETTA SNIJDERS
Second Plaintiff

AND

PETER CRELLAN KELLY

First Defendant

DONALD JAMES RIDEN
Second Defendant

AMY STOKS

Third Defendant

Hearing: 14 February 2024

Appearances:

Plaintiffs in person

R L Powell for Defendants

Judgment:

11 March 2024

JUDGMENT OF GRAU J

An ongoing dispute about a will

[1] Mr Willem Du Preez (Willem), Ms Getta Snijders (Getta) and Mr Peter Kelly (Peter) have been engaged in litigation since 2020 in both the District and High Courts in relation to the affairs of Peter’s aunt, Ms Barbara Anne Doornekamp-Wellman (Barbara), who died in January 2021.

[2] In November 2021, after receiving legal advice, Willem and Getta signed a settlement agreement with Peter, in which they agreed no further claims would be

DU PREEZ v KELLY [2024] NZHC 507 [11 March 2024]

made about matters associated with Barbara and/or her estate (the Settlement Agreement). Despite this agreement, Willem and Getta have continued to file proceedings based on their belief that Peter acted in a fraudulent manner in relation to his aunt’s final will, which Peter had executed on her behalf on 12 May 2020 (the 2020 Will), witnessed by his friends Donald Riden (Donald) and Amy Stoks (Amy). Willem and Getta believe Barbara’s final will is invalid because one of the witnesses’ signatures was forged and because it does not reflect Barbara’s testamentary wishes contained in an earlier will that Peter was aware of (the 2012 Will).

[3]Two sets of proceedings are currently before this Court:

(a)a claim by Willem and Getta against Peter with the underlying themes that Barbara’s 2020 Will does not reflect Barbara’s testamentary wishes, and that there was fraudulent behaviour by Peter in executing that will, including that he knew Barbara had an earlier will and that he withheld information from Willem and Getta until after they entered into the Settlement Agreement in 2021 (the 562 Proceeding); and

(b)a claim by Willem and Getta against Donald and Amy who witnessed Peter’s signature on Barbara’s 2020 Will. This claim is primarily concerned with Donald’s and Amy’s failure to provide handwriting samples that Willem and Getta wish to have examined by a Police document examiner to prove Donald’s signature is forged and therefore Barbara’s 2020 Will is invalid (the 751 Proceeding).

[4] Willem and Getta seek to be put back in the same financial position they were in before the litigation began between them and Peter. They seek a remedy equivalent to what they say was Barbara’s intention to leave Willem 20 per cent of her estate, purportedly set out in her 2012 will, and they also seek compensation for the emotional damage they say has been caused to them.

[5]There are four interlocutory matters to be determined in this decision:

(a)an application by Peter to strike out the 562 Proceeding;

(b)an application by Donald and Amy to strike out the 751…

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 Du Preez v Kelly

Details

AGLC: Du Preez v Kelly [2024] NZHC 507
Case: [2024] NZHC 507
Decision Date: 11 March 2024

CaseChat Overview and Summary

Du Preez v Kelly was an action before the High Court of New Zealand involving a dispute over a will and the estate of Barbara Anne Doornekamp-Wellman. Willem Du Preez and Getta Snijders brought claims against Peter Crella Kelly, as well as against Donald Riden and Amy Stoks, who had witnessed Peter's signature on Barbara's will. The court was required to decide four interlocutory matters: whether to strike out the claims against Peter and against Donald and Amy; whether to restrict the commencement or continuation of further proceedings by Willem and Getta; and whether to grant a freezing order against Peter.

The court found that the claims against Peter should be struck out because they were barred by a settlement agreement that had been signed by Willem, Getta, and Peter, and they were also an abuse of process. The claims against Donald and Amy were also struck out because they disclosed no reasonably arguable cause of action, were an abuse of process, and were also barred by the settlement agreement. The court made an extended order under section 166 of the Senior Courts Act 2016 preventing Willem and Getta from bringing further proceedings related to Barbara or her estate, and/or proceedings that would be otherwise precluded by the settlement agreement, for a period of three years. The court declined to make a freezing order against Peter.

Orders