Du Preez v Kelly

[2021] NZHC 2611

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-257

[2021] NZHC 2611

IN THE MATTER

of a freezing order application

BETWEEN

WILLEM DU PREEZ

Applicant

AND

PETER CRELLAN KELLY, as executor of the ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN

First Respondent

AND

JANET FIONA KELLY

Second Respondent

continued ….

Hearing:

22 September 2021 (by VMR)

Appearances:

D M Abricossow for Applicant

E J Horner and A D Goble for First Respondent D J Riden Fifth Respondent in-person

Judgment:

1 October 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

DU PREEZ v KELLY [2021] NZHC 2611 [1 October 2021]

AND              BUCHANAN GRAY LAWYERS

Third Respondent

AND              ANZ BANK OF NEW ZEALAND

Fourth Respondent

AND              DONALD JAMES RIDEN

Fifth Respondent

AND              AMY LOUISE STOKS

Non-Party

[1]    The applicant, Mr Du Preez, seeks what, in form, is pre-commencement discovery under rr 8.20 and 8.21 of the High Court Rules 2016 (the Rules), but in substance is a request that the fifth respondent, Mr Riden, and a non-party, Ms Stoks, be ordered to produce handwriting samples. During the hearing, Mr Abricossow, counsel for the applicant, focused on r 9.34 of the Rules which is also relied on in the application.

Background

[2]    The applicant and his  wife provided domestic  services for  approximately  10 years up until  late  2019  to  the  late  Ms Doornekamp-Wellman,  who  died  on 8 January 2021.

[3]    Ms Doornekamp-Wellman left the applicant a Will she made in 2012, subject to a Codicil made in mid-2019 (the 2012 Will).

[4]The first respondent, Mr Kelly, is the nephew of Ms Doornekamp-Wellman.

[5]    In September 2019, Ms Doornekamp-Wellman was assessed as lacking capacity to manage her personal care and welfare and an independent solicitor was appointed by the Family Court to represent her.

[6]    In November 2019, Mr Kelly was appointed Ms Doornekamp-Wellman’s property manager and welfare guardian.

[7]    In February 2020, the independent solicitor reported to the Family Court that it would be appropriate for a Will to be executed for Ms Doornekamp-Wellman.

[8]    It seems that neither Mr Kelly nor the independent solicitor were aware of  Ms Doornekamp-Wellman’s pre-existing Will.

[9]    The Family Court, on 15 April 2020, approved the draft Will in the form executed on 12 May 2020 (the 2020 Will). Ms Doornekamp-Wellman passed away on 8 January 2021 and Probate of the 2020 Will was granted on 5 March 2021.

[10]   Under the 2012 Will, the applicant received 20 per cent of the residue of the Estate. However, under the 2020 Will the applicant does not receive anything and  Mr Kelly receives 50 per cent of the residue.

Applicant’s allegations

[11]   The 2020 Will was completed when New Zealand was under the original COVID-19 lockdown, with level 3 applying on the day the Will was signed and witnessed. The Will was signed by Mr Kelly on behalf of Ms Doornekamp-Wellman and was witnessed by Ms Stoks and Mr Riden (or at least that is what is recorded on the Will).

[12]   The applicant, in short, claims that the signatures of one or both of the purported witnesses are not genuine. As such, he says the 2020 Will is invalid under the Wills Act 2007 and he intends to apply for probate in solemn form of the 2012 Will.

The application

[13]   The applicant seeks an order that Ms Stoks and Mr Riden produce the following:

(a)a certified copy of each of their passports;

(b)a three-line sample of handwriting from each of them subject to the following conditions:

(i)the samples are on lined paper using a ball point pen;

(ii)the paper they are writing on is to be removed and replaced every third time;

(iii)the samples include in block capital letters their address and the word CONSULTANT; and

(iv)the address and word CONSULTANT to be written 10 times; and

(e)       each of their signatures and initials, 20 times each.

[14]   Accordingly, other than in relation to their passports, the applicant seeks an order that Mr Riden and Ms Stoks create documents that do not exist, that is, the handwriting samples. The applicant wants to use those samples to assist in a forensic analysis of the signatures on the 2020 Will. The witnesses both describe their occupation as “Consultant” on the Will, hence the requests at [13](b)(iii) and (iv).

[15]   The expert instructed, Ms Morrell, has provided a preliminary report, although it is unsigned and unsworn. Ms Morrell, albeit after access to limited material, concluded that two different writers completed the signatures of the witnesses to the 2020 Will. Her conclusion, however, is: “differences between witness 1 and witness 2 entries are such that one writer DID NOT complete the handwriting for both”.

[16]   Mr Riden provided an affidavit dated 13 May 2021 explaining the circumstances in  which  the  Will  was  witnessed  by  him  and  Ms Stoks  under  the COVID-19 Level 3 lockdown restrictions. He explains he and Ms Stoks live together at a property in Wadestown, Wellington. Mr Kelly, whom he has known for a number of years, came to the property, having contacted Mr Riden in advance to ask if he and Ms Stoks could be witnesses. Mr Riden explains how the witnessing occurred in the garden of the property in order to maintain social distancing. Notwithstanding the social distancing, he said that they were able to talk with Mr Kelly

and watch him sign the Will. Mr Riden explains that Mr Kelly and the witnesses were together for the duration of the signing and the witnessing of the 2020 Will.

[17]   While, in his affidavit, the applicant expresses his own opinion that it “appears to the naked eye that the same person has completed and signed the witness sections”, that is not supported by the expert report produced by the applicant in the same affidavit. The applicant’s unqualified opinion does not take matters much further.

Pre-commencement discovery

[18]Rule 8.20 of the High Court Rules 2016 reads:

8.20     Order for particular discovery before proceeding commenced

(1)This rule applies if it appears to a Judge that—

(a)a person (the intending plaintiff) is or may be entitled to claim in the court relief against another person (the intended defendant) but that it is impossible or impracticable for the intending plaintiff to formulate the intending plaintiff’s claim without reference to 1 or more documents or a group of documents; and

(b)there are grounds to believe that the documents may be or may have been in the control of a person (the person) who may or may not be the intended defendant.

(2)The Judge may, on the application of the intending plaintiff made before any proceeding is brought, order the person—

(a)to file an affidavit stating—

(i)whether the documents are or have been in the person’s control; and

(ii)if they have been but are no longer in the person’s control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and who now has control of them; and

(b)to serve the affidavit on the intending plaintiff; and

(c)if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the intending plaintiff.

(3)An application under subclause (2) must be by interlocutory application made on notice—

(a)to the person; and

(b)to the intended defendant.

(4)The Judge may not make an order under this rule unless satisfied that the order is necessary at the time when the order is made.

[19]   The only documents presently in existence to which the application could relate are the witnesses’ passports.

[20]   Discovery does not require a party to create documents  that  do  not  exist. Mr Abricossow in his written submissions referred to SCC (NZ) Ltd v Samsung Electronics New Zealand Ltd, for the proposition that a creation of documents can form part of a party’s discovery obligations but he accepted at the hearing that discovery does not apply to documents that do not exist.1 SCC (NZ) Ltd concerned whether Samsung had to “create” documents from electronic databases to meet tailored discovery obligations. It was held Samsung had to create the documents from their databases but those documents already existed in electronic form. This is different from what is sought here, which is the creation of a document that does not exist in any form, electronic or otherwise.

[21]   As to the balance of the pre-commencement discovery application (being the passports), the issue for the applicant is that he is faced not so much with a difficulty formulating his claim – he knows exactly what he would allege in a statement of claim

- what he seeks is evidence. So much is clear from his affidavit of 12 July 2021 when he says:

… before I make the final decision whether to embark on the costly exercise of applying to recall probate of the 2020 Will, I want to ensure that my case is as strong as it can be. If I can obtain the Requested Samples, Ms Morrell will be able to forensically determine whether Mr Riden and Ms Stoks properly witnessed the 2020 Will. If she concludes they did not, that will considerably strengthen my case.

[22]   Accordingly, the documents are sought for evidentiary purposes and not pleading purposes. This is not the purpose of pre-commencement discovery.

1      SCC (NZ) Ltd v Samsung Electronics New Zealand Ltd [2017] NZHC 2094.

[23]Counsel for the applicant also relies on r 9.34 of the Rules, which provides:

9.34     Order for inspection, etc

(1)The court may, for the purpose of enabling the proper determination of any matter in question in a proceeding, make orders, on terms, for—

(a)the inspection of any property:

(b)the taking of samples of any property:

(c)the observation of any property:

(d)the measuring, weighing, or photographing of any property:

(e)the conduct of an experiment on or with any property:

(f)the observation of a process.

(2)An order may authorise a person to enter any land or do anything else for the purpose of getting access to the property.

(3)In this rule, property includes any land and any document or other chattel, whether in the control of a party or not.

[24]   However, the above rule requires there to be a proceeding underway. Under the heading “Time for Application” McGechan on Procedure notes:2

(1)     Issue must be apparent

An order cannot be made until the “matter(s) in question in (the) proceeding” is apparent. Accordingly, an order under r 9.34 is usually sought after a statement of defence has been served, and the issues are apparent. Only then can the relevance and importance of an inspection or testing process be evaluated and a decision made as to whether the invasive step of inspection is warranted. But an order could be made earlier, if the relevant issue(s) is obvious on the statement of claim: Jag Media Ltd v Magna Systems Engineering (NZ) Ltd [2012] NZHC 733 at [4]-[7].

[25]   While McGechan refers to the expert examination of signatures on a document as an example of where r 9.34 has been used,3 the rule is not available prior to proceedings being commenced. I find neither rule relied on by the applicant provides a basis for the orders sought.

2      Andrew  Beck  and  others  (eds)  McGechan  on  Procedure  (online  ed,  Thomson  Reuters)   at [HR9.34.02(1)].

3      McGechan on Procedure, above n 2, at [HR9.34.05(2)(b)].

[26]   The applicant also relies on the inherent jurisdiction of the High Court. The applicant did not refer to authority where a person has been ordered to produce handwriting samples prior to the issue of proceedings. Such an order has the flavour of a mandatory injunction.  Even if the jurisdiction exists, to order a witness to give  a handwriting sample before trial, I have my doubts whether such would be exercisable by an Associate Judge.

[27]   While I can understand the applicant not wanting to embark on proceedings without a sound evidentiary basis, I agree with Ms Horner, counsel for Mr Kelly, that the application has the hallmarks of a fishing expedition for evidence rather than for material needed to support a pleading.

[28]   Mr Abricossow denied there was any element of “fishing” in the application as it was not aimed at obtaining:4

information or documents by interrogatories or discovery in order to discover a cause of action different from that pleaded or in order to discover circumstances which may or may not support a baseless or speculative cause of action.

[29]   If that submission is correct then we are back to the proposition that the applicant is seeking to obtain evidence before commencing his proceeding in order to decide whether to proceed further. In a proceeding where the evidence is given by affidavit, r 9.75 is available in case of a reluctant deponent otherwise, a witness summons is available in order to obtain documents. As mentioned above, even if the jurisdiction exists to order a witness to give a handwriting sample before trial, this is not an appropriate case for it to be exercised. The applicant can draft a statement of claim if he wishes. A proceeding can be formulated. If issues arise during the proceeding with obtaining evidence, then the processes under the Rules will then be available. The applicant, whilst self-represented, applied for a freezing order over the Estate which was resolved by agreement. The applicant considered he had enough evidence to invoke the Court’s jurisdiction at that time. The applicant was directed to file substantive proceedings within a specified time, which has not occurred.

4      Australian Mutual Provident Society  v Architectural Windows Ltd  [1986] 2 NZLR 190 (HC) at 196.

[30]   In any event, the real question here is even if there is an issue with the witnessing of the 2020 Will, does it actually represent Ms Doornekamp-Wellman’s testamentary intentions? If the 2020 Will was invalid due to an irregularity in the witnessing then an application could nonetheless be made to validate the Will under  s 14 of the Wills Act 2007.

[31]   Given   that   the   Will   was   approved   by    the    Family    Court    with Ms Doornekamp-Wellman having the benefit of independent counsel, there would be at least an arguable case for validation of the Will. In fact, and as Mr Abricossow accepted, his client’s intention to apply for probate in solemn form is a collateral attack on the Family Court judgment. This is another factor against this Court resorting to its inherent jurisdiction (assuming it is available) in order to make the order sought. Establishing an irregularity of witnessing would be a hollow victory if the Will was nonetheless validated.

[32]   Accordingly, I decline the application. It is not enough that the request is not onerous or that it would not involve significant costs (which could be directed to be met by the applicant in any event). Mr Riden has provided an affidavit as to the witnessing. Given his word has not been accepted by the applicant, Mr Riden is not inclined to assist him.

Costs

[33]   While counsel did not address costs, my initial view is that they should follow the event on a 2B basis along with disbursements as fixed by the Registrar. If no submissions as to costs are filed within five working days of the date of this Judgment, then my initial reaction shall become, without more, the order as to costs.

Associate Judge Lester

Solicitors:

Morrison Kent, Wellington

Mahony Horner Lawyers, Wellington