George v Macaulay

[2020] NZHC 769

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000102

[2020] NZHC 769

UNDER

The Family Protection Act 1955

BETWEEN

STEPHANIE MACAULAY GEORGE by

her litigation guardians PAUL ASHLEY and CLINTON GEORGE

Plaintiff

AND

DEBORAH MAREE MACAULAY as

Executor of the Estate of the late WILLIAM FORSYTH MACAULAY

Defendant

Hearing:

On the papers

Counsel:

N A Farrands for the Plaintiff

C Walsh for Deborah Maree Macaulay

Judgment:

21 April 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 21 April 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Morrison Kent, Auckland (PWG Ahern) for the Plaintiffs

GEORGE & ORS v MACAULAY [2020] NZHC 769 [21 April 2020]

[1]                  The plaintiff, Stephanie Macaulay George (Stephanie), is six years old. She is the only grandchild of  the  late  William  Forsyth  Macaulay,  who  died  on  about 14 August 2018 leaving a last will dated 5 July 2016. Probate of the will was granted on 27 September 2018.

[2]                  No provision in the will  was  made  for Stephanie.  The  sole  legatee  was Mr Macaulay’s only child, Deborah Maree Macaulay (Deborah). Deborah is Stephanie’s mother.

[3]                  Since shortly after her birth in 2013, Stephanie has been in the care of Clinton George (who is Stephanie’s uncle) and Paul Ashley (Clinton’s partner). They were appointed Stephanie’s legal guardians by Family Court order dated 28 May 2014.

[4]                  In October 2018, after having sought advice, Mr George and Mr Ashley initiated a claim on behalf of Stephanie under the Family Protection Act 1955 (the Act). On 9 January 2019, Lang J made an order appointing Mr George and Mr Ashley litigation guardians for Stephanie for the conduct of proceedings, which were filed on 30 January 2019. Deborah, in her capacity as executor, filed a statement of defence on 29 March 2019.

[5]                  Since late June 2019, the parties have been in negotiations regarding settlement. The negotiations were concluded at a judicial settlement conference held before Associate Judge Smith on 12 March 2020. The parties are now in agreement as to the provision that should be made for Stephanie and ask the Court to make an order by way of consent approving the settlement in accordance with the Act.

[6]                  I have reviewed the draft order and have had the benefit of a joint memorandum of counsel. I am satisfied that the draft order is appropriate given Stephanie’s unique circumstances and the fact that there are no other known persons who could bring a claim under the Act. In the circumstances, I make the following order:

By way of consent an order is made pursuant to section 4 of the Family Protection Act 1955 for provision to Stephanie Macaulay George out of the estate of the late William Forsyth Macaulay on the terms set out in

the settlement agreement of 12 March 2020 (as provided to this Court) entered into between Stephanie Macaulay George (by way of her litigation guardians Paul Ashley and Clinton George) and Deborah Maree Macaulay, as Executor of the estate of William Forsyth Macaulay and as beneficiary of the estate, but with the variation (agreed by the parties) that Nicola Jane Craig is replaced as trustee of both trusts by DWL Macaulay Trustee Company Limited, a trustee company of which Nichola Jane Craig and Lucas Burn are directors and Nichola Jane Craig the sole shareholder.

[7]                  With respect to Associate Judge Smith, I am of the view that the approval of the Court is not required under s 107 of the Contract and Commercial Law Act 2017.

[8]There is no issue as to costs.

Woolford J