Gaskin v Stark - [2020] NZHC 2321

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000026

[2020] NZHC 2321

IN THE MATTER of Section 149 of the Companies Act 1993

BETWEEN

GRAEME KENNETH GASKIN and ELIZABETH JOAN DUSTIN, in their

capacity as trustees of the DUSTIN FAMILY TRUST

Plaintiffs

AND

ALASTAIR DAVID STARK

First Defendant

AND

ALAN BEVIN MCKAY

Second Defendant

AND

RICHARD DRUMMOND FRASER

Third Defendant

AND

MEAD AND STARK

Fourth Defendant

Hearing: Determined on the papers

Counsel:

D G Hurd for Applicant, Caroline Ann Stark

Judgment:

7 September 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 September 2020 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GASKIN and DUSTIN v STARK [2020] NZHC 2321 [7 September 2020]

[1] The applicant is the daughter of the first defendant Alastair David Stark (Mr Stark) and applies for orders that:

(a)she be appointed as litigation guardian for Mr Stark; and

(b)service of this application on Mr Stark be dispensed with.

Background

[2] This proceeding arises from the sale of shares in two companies by the Official Assignee in the bankruptcy of Ian Luke Dustin. The Official Assignee assigned its rights of action arising from the share sale transaction to the plaintiffs who, in their second amended statement of claim, plead six causes of action against Mr Stark.

[3] Mr Stark is an incapacitated person for the purposes of r 4.29 of the High Court Rules 2016. The principal evidence concerning this is from an affidavit of Anna Lise Seifert, a registered medical practitioner, practising psychiatrist and a specialist in mental health for older people. Mr Stark had a brain tumour and underwent surgeries in 2017 and 2019. He suffered a stroke in 2019 and then had a serious fall in January 2020 causing further injury. Mr Stark is no longer capable of making decisions about his personal or property matters and lacks any understanding of issues on which his decisions would be required as a litigant conducting court proceedings.

[4] Mr Stark granted an Enduring Power of Attorney dated 2 September 2017 in relation to property to the second defendant, Alan Bevin McKay (Mr McKay). The Enduring Power of Attorney came into effect when Mr Stark became mentally incapable in May 2019. Since then, Mr McKay has been acting as Mr Stark’s attorney with regard to his property. Mr McKay understands that as Mr Stark’s attorney he is authorised to conduct this court proceeding on his behalf as his litigation guardian. As he is also a party to this proceeding he considers it is inappropriate for him to act as Mr Stark’s litigation guardian. Mr McKay disclaims any role as Mr Stark’s litigation guardian in so far as it relates to the conduct of this proceeding.

[5] As Mr McKay is unwilling or unable to act as Mr Stark’s litigation guardian, the applicant, Caroline Ann Stark (Caroline), has applied for appointment as her

father’s litigation guardian.…

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 Gaskin v Stark

Details

AGLC: Gaskin v Stark [2020] NZHC 2321
Case: [2020] NZHC 2321
Decision Date: 7 September 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Dunedin Registry, the case of Gaskin v Stark involves the application by Caroline Ann Stark for orders appointing her as litigation guardian for her father, Alastair David Stark, and dispensing with the requirement to serve the application on her father. Alastair Stark is an incapacitated person due to a brain tumour, stroke, and other injuries, rendering him unable to understand the issues or give instructions for the court proceedings. The application arises from the sale of shares in two companies by the Official Assignee in the bankruptcy of Ian Luke Dustin. The plaintiffs, Graeme Kenneth Gaskin and Elizabeth Joan Dustin, in their capacity as trustees of the Dustin Family Trust, have brought six causes of action against Alastair Stark.

The legal issues before the court were whether Caroline Stark could be appointed as her father's litigation guardian given that her father's attorney, Alan Bevin McKay, was unwilling to act in that capacity and whether service of the application on Alastair Stark should be dispensed with. The court considered the definition of an incapacitated person and the role of a litigation guardian as per the High Court Rules 2016. The court also looked at the possibility of excluding Mr McKay's powers to conduct the proceedings on behalf of Mr Stark and the application to dispense with service of the application upon Mr Stark.

The court concluded that Mr Stark required a litigation guardian to protect his interests, and Caroline Stark was a suitable person to act as such a guardian. The court found that the apparent exclusion of jurisdiction to appoint a litigation guardian did not make sense in the circumstances where Mr McKay considered it inappropriate to carry out the litigation guardian role. The court decided to exercise its inherent jurisdiction or apply rule 1.6 of the High Court Rules to appoint Caroline Stark as her father's litigation guardian. The court also found that there was no purpose in serving the application on Mr Stark as he would not understand it or be able to provide instructions in relation to it.

The court appointed Caroline Ann Stark as Mr Stark's litigation guardian to defend and conduct these court proceedings in his name and on his behalf. The court reserved leave for the applicant to further apply in respect of any matter arising and made no order as to costs on the application.

Orders