Ellice v Stallard

[2019] NZHC 1739

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1716

[2019] NZHC 1739

BETWEEN

LYNDA MARLYN ELLICE and STANLEY EDWARD ELLICE

Plaintiffs

AND

SHANE RAY STALLARD

Defendant

Hearing:

7 May 2019; further pleadings (with leave) 6 June 2019

Counsel:

CA Andrews and PS Kim for plaintiffs

No appearance for or on behalf of the defendant

Judgment:

23 July 2019

JUDGMENT OF FITZGERALD J

[Formal Proof]

This judgment was delivered by me on 23 July 2019 at 3pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           McVeagh Fleming, Auckland

Ellice v Stallard [2019] NZHC 1739 [23 July 2019]

Introduction

[1]    Over a four-year period commencing in 2008,  the  first-named  plaintiff,  Mrs Ellice, made regular cash payments to the defendant, Mr Stallard, who was a high school friend of Mr and Mrs Ellice’s son. Mr Stallard told Mrs Ellice, and she believed, that he needed the money to fund cancer treatment (including in Australia), pay his children’s school fees, and for knee surgery. Mr Stallard promised he would repay the money. An analysis of the plaintiffs’ bank accounts shows that approximately $550,000 was paid by Mrs Ellice to Mr Stallard over the period in question.

[2]    Mrs Ellice was able to fund these payments because in 2008, she had won approximately $500,000 in Lotto Strike. As a result of the payments to Mr Stallard, however, those winnings are now gone.

[3]    At the time the payments were made, Mrs Ellice did not tell her husband about them. She had controlled and overseen the couple’s finances over a 40-year period and Mr Ellice was unaware their funds were being depleted in this way. He first became aware of the payments in late 2012 when demand was made on him and  Mrs Ellice by their bank, given their then precarious financial position.

[4]    This led to a meeting between Mr and Mrs Ellice and Mr Stallard in late 2012, at which the plaintiffs made demand on Mr Stallard for repayment of the money. He has not repaid any of the money. Hence the plaintiffs have commenced these proceedings.

Procedural background

[5]    While Mr Stallard has been served with the proceedings (through an order for substituted service), he has not participated in or defended them. The hearing before me accordingly proceeded by way of formal proof.

[6]    When the matter was first called before me, the only evidential materials before the Court were relatively brief affidavits by Mrs Ellice and her son, setting out the analysis of the bank statements and the amounts in question. There was no evidence

from Mr Ellice, and Mrs Ellice’s affidavit gave rise to a number of questions on which I considered it would be helpful to hear from her. The day before the hearing, I accordingly issued a minute requesting that Mrs Ellice (and her son) be available to answer any questions the Court might have at the formal proof hearing.

[7]    As it transpired,…