Eyton v Eyton - [2021] NZHC 1479

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-376

[2021] NZHC 1479

BETWEEN VICTOR JAMES (JIM) EDWARD EYTON and SHIRLEY PATRICIA EYTON
Plaintiffs

AND

ANDREW CHRISTOPHER EYTON

First Defendant

AND

SARAH LISA BLACKBURN

Second Defendant

Continued

Hearing: 3 June 2021

Appearances:

K Wiseman for the Plaintiffs in (376) and for the Defendant in (17)

J Turner and A Tarabova for the Plaintiffs in (17) and for the Defendants in (376)

Judgment:

21 June 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 21 June 2021 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
McVeagh Fleming, Auckland
Kate Wiseman, Barrister, Bankside Chambers, Auckland

EYTON & ANOR v EYTON [2021] NZHC 1479 [21 June 2021]

CIV-2020-404-17

BETWEEN ANDREW CHRISTOPHER EYTON
First Plaintiff

AND SARAH LISA BLACKBURN
Second Plaintiff

ANDVICTOR JAMES (JIM) EDWARD EYTON
Defendant

[1] This proceeding is a family dispute over a property at 46 Hanham Road, Kumeu. It began as a summary judgment application by Philip Eyton against his brother Victor James Eyton (Jim) for a sale order of the co-owned Hanham Road property (proceedings -17). Philip died and the executor of his estate Andrew Eyton replaced him as plaintiff. Subsequently Jim and Shirley Eyton (who I refer to as the plaintiffs) brought the claim in -376 in constructive trust and under the Testamentary Promises Act 1949.

[2] The plaintiffs seek to join Luke Kemp who has acted as solicitor for one or more members of the family as the third defendant in -376. The plaintiffs then seek to amend the statement of claim to add causes of action against Mr Kemp for breach of fiduciary duty and/or negligence.

[3] A one-week trial for the existing proceeding is scheduled to begin on 2 August 2021. Therefore the joinder and any amendment would require at the least a very tight new timetable (which is what is sought by the plaintiffs) or an adjournment of the hearing, which the defendants say would be inevitable.

[4] The first and second defendants oppose both applications. The plaintiffs served the applications on the intended third defendant Mr Kemp, which while not specified is standard practice.1 Although not required to do so, somewhat surprisingly in these circumstances Mr Kemp did not take any steps in opposition.

[5]Rule 4.56 of the High Court Rules 2016 provides so far as relevant:

4.56 Striking out and adding parties
(1)   A Judge may, at any stage of a proceeding, order that—
(a)the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or
(b)the name of a person be added as a plaintiff or defendant because—
(i)   the person ought to have been joined; or
(ii)     the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.

(2) An order does not require an application and may be made on…

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 Eyton v Eyton

Details

AGLC: Eyton v Eyton [2021] NZHC 1479
Case: [2021] NZHC 1479
Decision Date: 21 June 2021

CaseChat Overview and Summary

In the case of Eyton v Eyton, the plaintiffs, Victor James (Jim) Eyton and Shirley Patricia Eyton, sought to join Luke Kemp as the third defendant and amend their statement of claim to add causes of action against him for breach of fiduciary duty and/or negligence. The first and second defendants, Andrew Christopher Eyton and Sarah Lisa Blackburn, opposed the applications. The plaintiffs argued that Mr Kemp should be added as a defendant because he ought to have been joined, or his presence was necessary to adjudicate on and settle all questions involved in the proceeding. The defendants contended that the joinder and amendment would require an adjournment of the hearing, which would be inevitable and unjust. The court examined the relevant rules and principles regarding the joinder and amendment of parties in civil proceedings. The court found that the plaintiffs had not demonstrated that Mr Kemp's presence was necessary to adjudicate on and settle all questions involved in the proceeding as it stood. The court also exercised its discretion against joinder at that stage of the proceeding, given the short timeframe and the separate causes of action against Mr Kemp. The court therefore declined the application for joinder and amendment. The plaintiffs' applications were dismissed and costs were reserved. The parties were directed to file memoranda if any amendment to the timetable was still required.

Orders