Gavin v Powell - [2019] NZHC 2981

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000272

[2019] NZHC 2981

BETWEEN
CHARLOTTE TERESA GAVIN

Plaintiff

AND

DANIEL JOHN POWELL

First Defendant

AND

PAUL JOSEPH DORRANCE

Second Defendant

Hearing: 21 October 2019

Appearances:

A F Grant for the Plaintiff

W Palmer for the First and Second Defendants

Judgment:

14 November 2019

Reissued:

5 December 2019

JUDGMENT OF NATION J

[1] Since my judgment on interlocutory applications of 7 June 2019,1 the plaintiff (Charlotte) has been endeavouring to settle on the form of an amended statement of claim. This has been necessary so the pleadings can be settled and then evidence again provided by affidavit so the real issues between the parties can be determined. Various draft amended statements of claim were provided to counsel for the defendants. They maintained certain objections to the claim. Counsel agreed the Court would have to rule on the objections for matters to progress.

1 Gavin v Powell [2019] NZHC 1277.

GAVIN v POWELL [2019] NZHC 2981 [14 November 2019]

[2] On 21 October 2019, I heard submissions as to a proposed second amended statement of claim dated September 2019.

[3] Although there were various objections on a paragraph by paragraph basis, I propose to deal with the objections in a more general way. With the rulings I make, it should be possible for counsel to prepare an amended statement of claim which complies with the Court’s directions.

Inconsistent pleadings and alleged failure to differentiate between defendants

[4] In the draft amended statement of claim, Charlotte claims both defendants were not authorised to act as trustees of the Daniel Powell Family Trust (DP Trust) but she also claims that, despite their lack of authority to do so, they were nevertheless subject to certain specified duties as trustees. The defendants contend that, in this, there is a contradiction. To that criticism, Mr Grant, for Charlotte, contends there is not necessarily a contradiction. Charlotte contends that, if they were not authorised to act as trustees, in purporting to act as trustees they had nevertheless assumed obligations pursuant to a trust “de son tort”.

[5] The defendants’ objection to the amended statement of claim in its current form could be met with a pleading, firstly, that the defendants were not authorised to act as trustees and, secondly, an alternative pleading that, if they were not so authorised, they have nevertheless had various duties as trustees under a trust de son tort.

[6]The amended pleading should be prepared on that basis.

[7] Distinct causes of action founded on separate and distinct facts must, if possible, be stated separately and clearly.2 The statement of claim must show the general nature of the plaintiff’s claim to the relief sought.3

[8] As currently drafted, the amended statement of claim is not as clear as it could or should be because it makes allegations against both defendants when, in some instances, they relate to only one of the defendants. For instance, the…

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 Gavin v Powell

Details

AGLC: Gavin v Powell [2019] NZHC 2981
Case: [2019] NZHC 2981
Decision Date: 14 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Charlotte Teresa Gavin initiated proceedings against Daniel John Powell and Paul Joseph Dorrance, asserting that they were not authorised to act as trustees of the Daniel Powell Family Trust. The court was required to determine various objections raised by the defendants concerning the plaintiff's amended statement of claim. These objections included issues such as inconsistent pleadings, an alleged failure to differentiate between the defendants, and the need for further particulars regarding the claimed breaches of trust. Additionally, the court had to rule on the plaintiff's attempts to introduce evidence regarding the settlor's intentions, which had already been considered in previous proceedings.

The court addressed the objections by clarifying that distinct causes of action should be stated separately and that allegations against both defendants should be clearly differentiated when they relate to only one of them. The court ruled that the plaintiff's amended statement of claim should include separate pleadings against each defendant regarding their respective roles and alleged breaches of trust. Furthermore, the court decided that the plaintiff's attempt to relitigate the settlor's intentions was an abuse of court processes, as these issues had already been determined in earlier proceedings. The court also allowed the plaintiff to base her allegations on information from a previous affidavit by Ms Ballinger, despite an earlier direction that she would file a new affidavit.

The court concluded that the plaintiff's request for financial statements of Kensal Investments Limited, relating to periods before the cut-off date set in earlier proceedings, was an abuse of the court process and not relevant to the current issues at hand. Finally, the court directed that the plaintiff file a further amended statement of claim within 10 working days, and set out a timetable for the filing of further pleadings and the progression of the case towards a full hearing.

Orders