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 terms the court considers just.

1      See Standard Optical Co of Australasia Ltd (in rec’v) v Charmant Optical Co Ltd HC Wellington CP1007/90, 14 May 1992.

[6]    The plaintiffs rely on r 4.56(1)(b). The authors of McGechan state that the tendency has been to regard persons as parties who:2

[…] “ought to have been joined” if the presence of such parties before the Court is necessary to enable the Court to adjudicate upon the precise issues raised in the proceedings. In that light, it is potentially a rather more limited ground than the alternative which follows.

[7]    In fact the language used in McGechan to describe (b)(i) is the same as the language in (b)(ii). The specific commentary does not appear therefore to be very helpful.

[8]    Of greater utility is the authors’ earlier suggestion that r 4.56 must be read alongside rr 4.2 and 4.3,3 which provisions identify who can and should be before the Court as plaintiffs and defendants, and also their reference to early judicial statements of the purpose of the rule at the time its predecessor was first introduced in England. These are to the effect that:4

Where there is one subject-matter out of which several disputes arise, all parties may be brought before the Court, and all those disputes may be determined at the same time without delay and expense of several actions and trials.

[9]    It may be that Mr Kemp is someone who “ought” to have been joined. He is someone who could have been included in the proceeding despite the quite different causes of action against him, given those claims arise out of the same subject matter as the extant claims. Alternatively the claim against him could have been brought as a separate claim and then consolidated, or heard sequentially.

[10]   I question whether Mr Kemp’s presence is necessary in the current case “to adjudicate on and settle all questions involved in the proceeding”. That is a reference to the proceeding as it stands, not to the proceeding as the plaintiffs seek to amend it. Mr Kemp’s presence as a party is not necessary to adjudicate on and settle questions arising out of the constructive trust and testamentary promise causes of action.

2      A C Beck and others McGechan on Procedure (looseleafed, Thomson Reuters) at [HR4.56.07].

3      At [HR 4.56.04].

4      At [HR 4.56.03], citing Montgomery v Foy Morgan & Co [1895] 2 QB 321 (EWCA) at 324.

[11]   In any event, even if jurisdiction were established, I would exercise my discretion against joinder at this stage of the proceeding. The proceeding commenced some time ago and has a fixture within a very short timeframe. It would not be just to join a defendant at this stage who is facing quite separate causes of action, albeit these arise out of the same facts. I take full note in this regard of Ms Wiseman’s submission that Mr Kemp has been on notice for some time of a potential claim against him in the event that the plaintiffs fail (or do not succeed in full) in their claims against the defendants. He is also a witness in the existing proceeding, has already filed affidavits in support of the defendants and was advised on 4 May 2021 of the claim to be filed against him in this proceeding. I accept all of that, but involvement as a witness is a very different matter to being joined as a defendant. Insurers would have to be involved, further pleadings filed and it is quite possible that further evidence would be required. All of this would fall after the close of pleadings date.5

[12]   It would also seem inevitable that the addition of another party and two new causes of action would extend the hearing beyond that currently scheduled. One way or another, it would seem inevitable that if joinder and the amended pleading were allowed the hearing would have to be vacated. That would not be just, nor in my view necessary.

[13]   I therefore decline the application for joinder, and it necessarily follows I decline the application to amend the statement of claim.

[14]   I appreciate the applications have arisen out of discussions that took place when this matter was called before Whata J in the duty list on 5 May 2021. However, quite arguably the course that has been taken prior to these applications is the better one. Once the present case is resolved, the plaintiffs can assess what if any claim they have against Mr Kemp. As Mr Turner submitted before me, if a separate proceeding is necessary, directions can be sought to rely on affidavit evidence from the present proceeding and a compact timetable and priority fixture sought.

[15]   Hopefully the current parties will find a lateral solution to this proceeding, which as I indicated at the hearing of these applications would seem to be possible,

5      See Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) at 385.

such that no further proceeding will be necessary. In a case like this every effort should be made to do so.

Conclusion

[16]The plaintiffs’ applications are dismissed. Costs are reserved.

[17]   If any amendment is still required to the timetable the parties should file memoranda.

Hinton J