Hagaman v Hagaman - [2023] NZHC 1168

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-531

[2023] NZHC 1168

IN THE MATTER of the Estate of Earl Raymond Hagaman

BETWEEN

DAMON CARLSON HAGAMAN, JENNIFER LYNN HAGAMAN ELDERS, KIMBERLY RAE HAGAMAN AND KEITH ERIC HAGAMAN

Plaintiffs

AND

LIANNA-MERIE HAGAMAN, GIBRALTAR TRUST LIMITED AND FJB

TRUSTEES LIMITED as trustees of the Naciemento Trust

First Defendants

LIANNA-MERIE HAGAMAN
Second Defendant

LIANNA-MERIE HAGAMAN,
GILBRALTAR TRUST LIMITED AND FJB

TRUSTEES LIMITED as trustees of the Sequoia Trust

Third Defendants

Hearing: 1 May 2023

Counsel:

A R Galbraith KC and G J D Mander for Plaintiffs

M G Colson KC and J L W Wass for First Defendants J B M Smith KC for Second Defendant

V L Heine KC for Third defendants and for non-party Estate E R Hagaman

Judgment:

16 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

HAGAMAN v HAGAMAN [2023] NZHC 1168 [16 May 2023]

Introduction

[1] This proceeding is set down for a 10-week hearing before Churchman J, commencing on 14 August 2023. The close of pleadings date has long past.

[2] The first issue in this judgment is that on 22 March 2023, the plaintiffs sought leave to file a fourth amended statement of claim. The application is opposed, although the defendants recognise the priority the Court gives to ensuring the true dispute between the parties is the subject of the hearing. They seek that if leave is granted, that it be on certain conditions, including that no further evidence in chief be filed by the plaintiffs (they having filed their briefs some time ago) and that the defendants are entitled to further discovery in respect of the new cause of action.

[3] The second issue relates to a request for further discovery by the plaintiffs; that request being driven by direct and indirect reference to material in evidence filed by the defendants. While a number of the plaintiffs’ requests have been resolved by agreement, some remain.

[4] The third issue concerns an affidavit filed by the late Mr Earl Hagaman (Earl) in Family Court proceedings many years ago. The issue is whether Earl’s reference in that affidavit to legal advice he received to not oppose the application, as opposed to consenting to it, meant he thereby waived privilege in that advice.

[5] The fourth issue is that presently members of the plaintiffs’ legal team have provided formal undertakings to keep confidential, material that has been provided by the defendants in discovery. The plaintiffs seek to expand the number of personnel who can have access to the confidential material on the basis that the named individuals will also give formal undertakings. That application is opposed.

[6] Finally, some case management issues were raised, including a request for a pre-hearing conference with the Trial Judge and the possibility that a brief hearing time may be required in the immediate future to resolve some residual issues. These issues have either been addressed outside of this judgment or will be…

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.

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Details

Case: [2023] NZHC 1168
Decision Date: 16 May 2023

CaseChat Overview and Summary

The case of Hagaman v Hagaman involved a complex family dispute over the estate of Earl Raymond Hagaman. The plaintiffs, Damon Carlson Hagaman, Jennifer Lynn Hagaman Elders, Kimberly Rae Hagaman, and Keith Eric Hagaman, sought leave to file a fourth amended statement of claim, which was opposed by the defendants, Lianna-Merie Hagaman, Gibraltar Trust Limited, and FJB Trustees Limited as trustees of the Naciemento Trust and the Sequoia Trust. The primary legal issues addressed by the court included the amendment of pleadings, further discovery requests, the waiver of privilege in relation to Earl Hagaman’s affidavit, and the confidentiality of discovery material. The court granted the application to amend the pleadings on conditions, including further discovery by the plaintiffs and restrictions on filing additional evidence in chief by the plaintiffs. Regarding further discovery, the court ordered specific documents to be provided by the plaintiffs, focusing on matters relevant to the new cause of action and issues raised by the defendants. The court declined to order further discovery on certain categories, deeming them either irrelevant or already covered by previous orders. In relation to the waiver of privilege, the court found that Earl Hagaman's affidavit did not constitute a waiver of privilege as it did not disclose a significant part of the privileged communication. Finally, the court extended the confidentiality undertakings to additional members of the plaintiffs’ legal team, ensuring the protection of discovery material.

The court’s orders included granting the application to amend the pleadings on specified conditions, directing specific further discovery by the plaintiffs, and extending confidentiality undertakings to additional legal team members.

Orders