Estate of Doornekamp-Wellman

[2022] NZHC 70

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-14

[2022] NZHC 70

UNDER

Section 3(1) Law Reform (Testamentary Promises) Act 1949; ss 5.19 and 5.28(3) of the High Court Rules 2016; ss 49(2), 54(4)(6) and 55(2) PPPR Act 1988; ss

71(1)(b) and 73(1) of the Contract and Commercial Law Act 2017

IN THE MATTER

of Unwarranted Enrichment

BETWEEN

WILLIAM DU PREEZ

First Applicant

GETTA SNIJDERS

Second Applicant

AND

ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN

First Respondent

AND

PETER CRELLAN KELLY

Second Respondent

AND

D M ABRICOSSOW

Non-Party

Hearing:	On the papers
Appearances:	Applicants in person
Judgment:	2 February 2022

JUDGMENT OF COOKE J

(Without notice application)

RE ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN [2022] NZHC 70 [2 February 2022]

[1]                 The  applicants’  without  notice  urgent   interlocutory   application   dated 25 January 2022 has been referred to me as Duty Judge. The application is supported by an affidavit of the same date sworn by the first applicant.

Background

[2]                 The  underlying  proceeding  is  subject  to  a  statement  of  claim  dated     21 December 2021. That document is 112 pages long. The essential allegations appear to be that the applicants previously knew and provided services and assistance to Mrs Barbara Doornekamp-Wellman, now deceased. Mrs Doornekamp-Wellman made a will, and also a codicil to her will under which the applicants benefitted. It appears that Mr Peter Kelly, her nephew, then executed a further will on her behalf and pursuant to a power of attorney under the Protection of Property Rights Act 1988, with that will being approved by the Family Court in April 2020. As I understand it the applicants did not benefit from this later will as they anticipated.

[3]                 The applicants contend that the will executed by Mr Kelly was not properly witnessed. It would appear that there have been proceedings between the parties in the District Court, one commenced by the applicants, and one by Mr Kelly. Based on the information contained in the application it would appear there has been a settlement and that the proceedings have been discontinued. The applicants say, however, that they entered the settlement under duress, and without disclosure of important information.

[4]                 The without notice application seeks orders that Mr David Abricossow of Morrison Kent deliver to the Court key documents in relation to the underlying dispute, including the  first  will,  the  codicil  and  other  documents  created  by  Mrs Doornekamp-Wellman. As I understand it Mr Abricossow was the applicants’ solicitor, and these orders are sought to preserve the evidence that is the subject of the claim.

Assessment

[5]                 As contemplated by r 7.33 of the High Court Rules 2016 (the Rules) no hearing of the application has been scheduled. Having considered the application, and the other documents filed by the applicants, I am satisfied that the Court should not make the orders without notice and that the application should be dismissed, including because the application does not comply with the Rules. That is so for several reasons.

[6]                 First, none of the grounds for making an order without notice under r 7.23(2) of the Rules is made out. Before such orders could be made under this rule an applicant needs to demonstrate why it is necessary to make such orders without providing the other parties to the proceedings an opportunity to be heard. Rule 7.23(3) requires that, where the application for orders is likely to be opposed, the applicant must file a memorandum addressing both the grounds for making it and an explanation for why it is sought without notice. No such memorandum or explanation has been provided. The applicant simply sets out the references to the potential grounds in r 7.23(2)(a) in their notice of application without any supporting evidence, or the required memorandum, explaining why orders without notice are necessary. Here the applicants are seeking orders directing that a non-party be ordered to deliver documents to the Court so that they be preserved. There is nothing in the material put forward that demonstrates a need for that application to be considered without notice to the respondent(s) to the proceedings, or the third party. For example, there is nothing that would suggest that if notice was given the documents would be destroyed, or otherwise become unavailable.

[7]                 The second related point is that I am not satisfied there is any need for the orders sought at all, or a specific rule that would allow such an order to be made. The applicants refer to rr 8.3 and 8.32 of the Rules. Both of these rules only apply to a party to the proceedings. Mr Abricossow is not a party. Rule 8.3 provides that parties must take all reasonable steps to preserve discoverable documents. It does not contemplate a delivery up order. Rule 8.32 contemplates a party to a proceeding giving another party a notice to produce a document or thing. Neither is there information before the Court suggesting there is any risk to the integrity of the documents sought justifying an order in the nature of a preservation order. In

particular I see no basis for a finding that documents such as wills might be destroyed, or otherwise made unavailable. Neither is there reason to question why the original documents would not be available to the Court if that was necessary for the appropriate disposition of this proceeding, including under the rules referred to. If it became necessary the Court could make orders for a non-party to make discovery. But invariably such an application would be made on-notice, including to the non-party from whom the documents would be sought.

[8]                 Finally I am not satisfied that the applicants have a strong case, and concerned that the respondent(s) may wish to argue that the proceeding has no substance, and may even contend that it is an abuse of process. The statement of claim is over 100 pages long. It appears to make a number of quite serious allegations. It is apparent that the subject matter has already been subject to proceedings in the District Court, and based on the material the applicants have filed these proceedings have been settled. The applicants assert that the settlement was under duress, and appear to suggest that their own lawyer did not provide key information to them. At the very least the applicants, who are self-represented, may face obstacles in establishing their claims in these circumstances. I would be most reluctant to make orders without notice in those general circumstances.

[9]                 For these reasons the application is dismissed. I direct the Registrar to provide a copy of this judgment to the respondent, Mr Peter Kelly, and also to Mr David Abricossow of Morrison Kent in addition to the applicants.

Cooke J