Eckhoff v Orbell - [2021] NZHC 757

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000133

[2021] NZHC 757

BETWEEN
PHILIPPA JANE ECKHOFF

Plaintiff

AND

RUTH ALICE ORBELL

First Defendant

AND

NICOLA ALICE HYSLOP

Second Defendant

AND

WILLIAM HAMISH ORBELL

Third Defendant

AND

RUTH ALICE ORBELL and WILLIAM

HAMISH ORBELL as trustees of the Hamish Orbell Family Trust
Fourth Defendants

AND

NICOLA ALICE HYSLOP, JONATHAN ANGUS HYSLOP and QA TRUSTEES

2012 LIMITED as trustees of the Hyslop Family Trust

Fifth Defendants

AND

JOHN DUNCAN MCFARLANE

Sixth Defendant

AND

JONATHAN ANGUS HYSLOP

Seventh Defendant

Hearing: 8 March 2021

Appearances:

D R Tobin and R M Reeve for Plaintiff M K Prendergast for First Defendant

M J Wallace for Second, Fifth and Seventh Defendants
S J Jamieson and J A Higby for Third and Fourth Defendants

Judgment:

13 April 2021

ECKHOFF v ORBELL [2021] NZHC 757 [13 April 2021]

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 13 April 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

The Applications

[1]This judgment concerns the following:

(a)an application by the second, fifth and seventh defendants for further particulars of the plaintiff’s statement of claim; and

(b)an application by the plaintiff for particular discovery from the first and second defendants.

[2]I will deal with the applications seriatim.

Further Particulars of Claim

Some context

[3]The protagonists in this proceeding are:

(a)The plaintiff (Philippa) is a daughter of William Orbell (William), who died in March 2003, and Ruth Orbell (Ruth).

(b)The first defendant is Ruth (William’s widow).

(c)The second defendant (Nicola) and the third defendant (Hamish) are the other children of Ruth and William (Philippa’s siblings).

(d)The fourth defendants (Ruth and Hamish) are the trustees of a trust associated with Hamish.

(e)The fifth defendants (Nicola, Jonathan and QA Trustees 2012 Ltd) are trustees of a trust associated with Nicola.

(f)The sixth defendant (John) is said to be an adviser to Ruth.

(g)The seventh defendant (Jonathan) is the husband of Nicola.

[4]Under William’s will:

(a)Ruth was appointed sole executrix and trustee;

(b)Ruth was granted a life interest in William’s estate (the Estate);

(c)5/11ths of the Estate was granted to Hamish;

(d)Philippa and Nicola were each granted 3/11ths of the Estate.

[5] At the time of William’s death, the major assets of the Orbell family were shares in farm-owning companies called Clayton Station Ltd (Clayton) and Levels Estate Co Ltd (Levels). Relevantly:

(a)Clayton was comprised of 28,805 shares owned as to 9,205 shares by the Estate and 19,600 shares owned by the W A Orbell Trust (the Trust).

(b)Clayton owned a farm near Fairlie and it also owned all 999 shares in Levels.

(c)Levels owned a farm near Timaru.

(d)Ruth, Hamish and John were directors of Clayton.

(e)Nicola and Jonathan were directors of Levels.

[6] Philippa pleads that on a date unknown to her Ruth, Nicola, Hamish and John entered into an oral agreement (referred to as the Farm Agreement) that:

(a)Hamish (or his nominee)…

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 Eckhoff v Orbell

Details

AGLC: Eckhoff v Orbell [2021] NZHC 757
Case: [2021] NZHC 757
Decision Date: 13 April 2021

CaseChat Overview and Summary

Eckhoff v Orbell is a case before the New Zealand High Court involving a dispute between Philippa Jane Eckhoff and several other defendants regarding the sale of shares in two companies, Clayton Station Ltd and Levels Estate Co Ltd, following the death of William Orbell. Philippa claims that the sales were at an undervalue and on non-commercial terms, depriving her of her true entitlement under William’s will and her right as a discretionary beneficiary to have the Trust administered in accordance with its terms. The case involves multiple applications, including an application by some defendants for further particulars of Philippa’s statement of claim and an application by Philippa for particular discovery from some of the defendants.

The court found that Philippa’s statement of claim was not compliant with the High Court Rules, as it did not clearly separate distinct causes of action and failed to identify the capacities in which each defendant was acting. The court directed Philippa to file an amended statement of claim that pleads distinct causes of action separately, incorporates particulars provided in her memorandum of particulars, and provides further particulars as required. The court dismissed Philippa’s application for further discovery, except for documents in category (b) which were to be supplied by consent, and financial records of Levels for some period reflecting upon the value of its shares as at the date of their sale to Nicola, for which Counsel were directed to confer and reach an agreement.

In summary, the court required Philippa to amend her statement of claim to meet the requirements of the High Court Rules and dismissed her application for further discovery, except for certain documents which were to be supplied by consent or agreed upon by Counsel.

Orders