Halcrow v McNamara

[2017] NZHC 539

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2016-404-000155

[2017] NZHC 539

IN THE MATTER OF

An application under Part 18 of the High Court Rules for further provision out of the Estate of Anna Dalgarno, pursuant to

the Law Feform (Testamentary Promises) Act 1949 and if necessary, for Orders under Section 49 of the Administtration Act 1969 or in equirty to follow assets

BETWEEN

TANYA ELLEN HALCROW

Substituted Plaintiff/Respondent

AND

JANE SIOBHAN MCNAMARA

Defendant/Applicant as dexecutor and trustee of the Estate of Anna Dalgarno

Hearing:

23 March 2017

Appearances:

P Finnigan for the Plaintiff/Respondent

G M Cameron for the Defendant/Applicant

Judgment:

23 March 2017

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

23.03.17 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

T E HALCROW v J S MCNAMARA [2017] NZHC 539 [23 March 2017]

[1]                 The defendant applies to strike out the plaintiff’s claim. The defendant’s application for security for costs is withdrawn and is dismissed.

[2]                 The proceeding is about an application for further provision from the estate of Anna Dalgarno, pursuant to the Law Reform (Testamentary Promises) Act 1949. It claims that the deceased had promised Ian Robert McMillan (Mr McMillan) that she would reward him for services provided to her in the four and half years prior to the deceased’s death.

[3]                 The statement of claim contains details of those services said to have been provided. The deceased’s Will contained no bequest to Mr McMillan. The deceased’s Will appointed the defendant as executor and trustee. The defendant is a niece of the deceased. Other legatees include Simon McNamara and three children of the deceased’s husband Roy Dalgarno by Mr Dalgarno’s first marriage. Mr Dalgarno predeceased the deceased. The deceased was also predeceased by her twin sister who had three children including the defendant executrix, her brother Simon, and her sister Kate Norley.

[4]                 The deceased died on 2 April 2015. On 8 September 2015 Mr McMillan’s solicitor wrote to the estate’s solicitor giving notice of Mr McMillan’s testamentary promises claim. Mr McMillan’s solicitor asserts having written to the estate’s solicitor on 4 November 2015 and 25 January 2016 – letters which the estate’s solicitor says were never received. It is said those letters provided notice of an intention to claim pursuant to ss 47 and 48 of the Administration Act 1969. The right of claim lapsed on 8 December 2015, no such proceeding having been filed or served. The defendant then proceeded to distribute the estate. It is stated that the balance of the estate currently available is $75,902.43 plus accrued interest since 27 July 2016, unless tracing is directed by the Court.

[5]                 The present proceeding was filed on 9 February and served on 17 March 2016. A number of statements of defence have been filed on behalf of legatees. On or about

9 February 2016 the affidavit of Mr McMillan was filed. On 3 March 2016 the affidavit of Ms Woodham was filed in support.

[6]                 On 16 May 2016 Mr McMillan died. Since then it has been determined Mr McMillan fathered a child to Ms Halcrow who has since been appointed as substituted plaintiff in this case. Ms Halcrow was on 12 December 2016 granted letters of administration in Mr McMillan’s estate.

[7]                 Meanwhile and until recently little progress has been made to advance the proceeding claim. Statements of defence were filed by the defendant on 20 April 2016 and by three legatees on 22 and 23 June 2016.

[8]The present interlocutory application was filed on 9 February 2017.

[9]That is supported by an affidavit of the defendant.

[10]              In opposition the Court has received affidavits from Mr Hirtzell, Mr Ward, Mr Romaniuk and Mr Steven in support. These affidavits were filed between 20 to 24 February 2017.

[11]              In reply affidavits have been filed of the defendant dated 10 March 2017 and Ms Kingston, the estate’s solicitor dated 10 March 2017.

[12]              These affidavits were filed pursuant to directions of Associate Judge Sargisson made on 3 February 2017 for the purpose of today’s hearing. Her Honour’s direction did not include the filing of response affidavits on behalf of the plaintiff. However responding affidavits on behalf of the plaintiff were filed by Mr Ward on 14 March 2017 and by Ms Woodham on 15 March 2017.

Strike out

[13]              Rule 15.1 provides inter alia that a court may strike out all or part of a pleading if it discloses no reasonably arguable claim or if it is likely to cause prejudice or delay, or is frivolous or vexatious, or is otherwise an abuse of the process of the Court.

[14]              Rule 15.2 enables dismissal for want of prosecution, an option which Mr Cameron submits is also available for present purposes. Mr Cameron submits current issues ought to focus upon:

(a)Whether there is a reasonably arguable cause of action.

(b)Whether there is prejudice to the defendant.

(c)Whether the Court could, notwithstanding the issues which have given rise to the strike out application, still proceed to determination in the interests of justice.

[15]Mr Cameron submits:

(a)This is a Testamentary Promises proceeding where oral evidence and cross-examination normally applies and where issues of credibility are often critical particularly when the person alleged to have made promises has died.

(b)Prejudice can arise from the death of a critical witness as is the case here.

(c)Undue delay has occurred for the deceased died two years ago, where preliminary notice of an intention to claim was given on 8 September 2015, and the proceeding was not commenced until February 2016 and not served until 17 March 2016.

[16]              Mr Cameron submits that apart from the evidence of Mr McMillan by his affidavit of 8 February 2016 and the initial affidavit of Ms Woodham, all evidence tendered on behalf of the plaintiff is pure hearsay and ought to be treated with caution, particularly in testamentary promises claims.

[17]              Mr Cameron submits even if claims of work and services performed by Mr McMillan were accepted, there remains the critical issue of nexus between those on the one hand and the promise on the other. Mr Cameron submits the plaintiff cannot

now prove that there is a nexus between work and services on the one hand and any promise (which promise is denied) which may have been made to Mr McMillan. Further Mr McMillan has not provided evidence concerning the deceased’s significant health issues which he must have known about.

[18]              Regarding Ms Woodham’s evidence, Mr Cameron notes that she did not commence work associated with the deceased until 2014 by which time there is evidence that the deceased was significantly medicated, in addition to being an alcoholic. In that light Mr Cameron says Ms Woodham’s evidence needs to be considered cautiously.

[19]              In brief Mr Cameron submits there is no nexus shown between whatever work and services Mr McMillan performed and the promise that he said was given to him.

Opposition

[20]              Mr Finnigan submits there has not been inordinate or inexcusable delay that has caused serious prejudice. There was delay in gaining letters of administration in relation to the administration of Mr McMillan’s estate but that amounted to about six months only and in that outcome the administrator was obliged to take the claim over but was not obliged to pursue those. Such delay was, submits Mr Finnigan, inherent in the circumstances surrounding the right to apply for a grant of administration, and related to the procedural step of applying for substitution as plaintiff. Such cannot he submits be characterised as inordinate or inexcusable.

[21]              Regarding issues concerning the inadmissibility of the affidavits of Mr McMillan and Ms Woodham, Mr Finnigan submits no prejudice arises from these.

[22]              Regarding Mr McMillan’s unavailability to give evidence and therefore to be cross-examined, counsel submits that will be a matter for assessment by a trial judge in due course. It will be for that Judge to consider issues of relevance and reliability. Considerations of value and prejudice will affect a Judge’s consideration of any hearsay evidence that might qualify for admission.

[23]              Ms Woodham’s evidence concerns her observations of what Mr McMillan carried out by way of services for the deceased, and for the promises she says the deceased made directly to her.

[24]              Mr Finnigan is clear that the plaintiff’s case does not rely upon the brother of Mr McMillan nor the substituted plaintiff to support and prove the claim.

[25]              Mr Finngan rejects claims the plaintiff’s case is inadequately supported by particulars of services and promises alleged to have been provided/made. Those particulars are detailed in paragraphs 24 – 26 of the statement of claim. Mr McMillan’s details of services are provided by paragraphs 31 – 46, 50, 51, 54, 57 and 71, of Mr McMillan’s affidavit. Ms Woodham’s evidence of services provided is detailed by her paragraph 7 – 11, 16 – 18, 22 and 23 of her affidavit.

[26]              Particulars of testamentary promises are provided in paragraphs 27 – 32 of the statement of claim.

[27]              It is submitted Mr McMillan’s affidavit at paragraphs 52 and 59 – 70 provide particulars of testamentary promises, as does Ms Woodham’s affidavit at paragraphs 9, 10, 13 – 15.

[28]              A lot of submission room has been utilized by counsel detailing claims of general and specific services provided over a period of four and a half years for a person who was severely infirmed and often bedridden and, who might likely have been unable to remain in her home but for those services.

[29]Regarding claims on behalf of the defendant that the remaining estate is about

$75,000, Mr Finnigan submits that should not affect the Court’s considerations except, whether to trace estate assets distributed prior to the proceeding being filed.

Security for costs

[30]              Mr Cameron advises this application is no longer pursued because the substituted plaintiff has acknowledged that costs awarded to the defendant, if any, will be paid from the estate of Mr McMillan prior to distribution to the beneficiary.

[31]Accordingly that application is dismissed.

Conclusions

[32]              In essence the strike out application is about claims that the pleadings cannot or should not succeed, whether for considerations of delay or the availability of sufficient evidence.

[33]              There have been delays but not in circumstances dissimilar to those referred to in Whitby1.

[34]              The Court does not accept any delays are inordinate or inexcusable, nor that they will affect the ability of this Court to consider available evidence in whatever form it is presented. It will be for the Trial Judge in due course to assess that evidence and to make rulings upon it. A lot of affidavit evidence has been filed. All deponents except for Mr McMillan would appear to be available for examination and cross- examination. The fact that Mr McMillan will not be available is a factor likely to prejudice the plaintiff more than it does the defendant.

[35]              Counsel have invited the Court on this occasion to form conclusions about the value of the evidence provided. However that is not what a strike out application is about.

Result

[36]The strike out application is dismissed.

[37]              In the Court’s view it is not appropriate to fix costs upon the strike out application at this time. Rather, that be a matter for consideration at the conclusion of the proceeding.

[38]The Court directs this matter be listed in the chambers list before me on

12 May 2017 at 2:15pm. The purpose of that call will be to review interlocutory

1 Whitby Forest Management Ltd v Buchanan, High Court Masterton, CP 10/86, J H Williams QC.

needs, schedule a trial and if counsel agree, to schedule a judicial settlement conference. The Court requests memoranda for that list call be filed and served no later than three working days beforehand. If counsel agree, then appearances will be excused on 12 May 2017.

Associate Judge Christiansen