Halpin v Darlow
[2024] NZHC 894
•23 April 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-428
[2024] NZHC 894
UNDER Part 27 and Rule 27.34 of the High Court Rules 2016 IN THE MATTER OF
the Estate of BARBARA MORRIS and the Grant of Probate of a Will and
Codicil by the High Court at Wellington under CIV-2022-485-601231 on 15 July 2022
BETWEEN
SALLY-ANNE HALPIN,
DAVID CHRISTOPHER STAFFORD
MORRIS and
TIMOTHY STAFFORD MORRIS
PlaintiffsAND
CHRISTOPHER DARLOW and
DAVID ROBERT APPLEBY, as Executors of the Estate of BARBARA MORRIS
First DefendantsRICHARD JOHN STAFFORD MORRIS
Second Defendant
Hearing: 12 March 2024 Appearances:
J P Cundy for the Plaintiffs
P J Napier and K Eastwood for the Second Defendant
Judgment:
23 April 2024
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application for strike out of parts of plaintiffs’ statement of claim]
This judgment was delivered by me on 23 April 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
HALPIN, v DARLOW and [2024] NZHC 894 [23 April 2024]
Introduction
[1] Richard John Stafford Morris (Mr Richard Morris) applies for orders striking out parts of the plaintiff’s statement of claim.
Background
[2] Mrs Barbara Morris (Mrs Morris) died on 11 August 2021. Mrs Morris executed a will dated 9 May 2014 (the 2014 will) and a codicil dated 25 June 2019 (the codicil). A will was also prepared for Mrs Morris on or around May 2018 (the draft 2018 will) which she did not execute. The codicil disproportionately benefited her son, Mr Richard Morris, over her three other adult children (the plaintiffs).
[3] The plaintiffs are seeking orders to set aside probate in respect of both the 2014 will and the codicil and that probate be granted to the draft 2018 will. The plaintiffs rely on three causes of action, being:
(a)undue influence by Mr Richard Morris in respect of the codicil;
(b)lack of Mrs Morris’ testamentary capacity when instructions were given and the codicil was executed; and
(c)validation of the draft 2018 will under s 14 of the Wills Act 2007.
[4] On 22 September 2023, Mr Richard Morris applied to partially strike out the plaintiffs’ claims. In particular, the pleadings Mr Richard Morris seeks to strike out concern:
(a)Mrs Morris’ instructions to her lawyers regarding Mr Richard Morris’ poor treatment of her and his control/influence over her property and finances. 1
1 Amended statement of claim dated 9 August 2023 at [8]– [13].
(b)Mr Richard Morris’ control over Mrs Morris’ property and finances. In particular, his use of Mrs Morris’ name, assets and money to maintain, operate and manage the horticultural business “MTC Perennials”.2
(c)Mr Richard Morris’ alleged misrepresentations to the Family Court,
Inland Revenue and/or other government agencies.3
(d)Mr Richard Morris’ alleged misappropriation of at least $870,341.02 of Mrs Morris’s money.4
[5]The plaintiffs oppose the strike-out application.
Mr Richard Morris’ application for strike-out
[6] Mr Richard Morris seeks orders striking out paragraphs [8]– [13] (inclusive) and [26]– [37] (inclusive) of the plaintiffs’ amended statement of claim dated 9 August 2023.5 The grounds on which orders are sought are:6
(a)The pleadings are likely to cause prejudice and delay.
(b)The pleadings are frivolous and vexatious.
(c)The pleadings are an abuse of process of the Court.
[7]No affidavit was submitted in support of Mr Richard Morris’ application.
The plaintiff’s opposition
[8]The plaintiffs oppose the strike-out on the following grounds:7
2 At [26] and [29]– [33].
3 At [27]– [28].
4 At [34]–[37].
5 Interlocutory application by second defendant on notice for order striking out proceedings dated 22 September 2023 at [1].
6 At [2].
7 Plaintiffs’ notice of opposition to second defendant’s strike out application dated 24 October 2023 at [3].
(a)The pleadings are not likely to cause prejudice or delay.
(b)The pleadings are not frivolous or vexatious.
(c)The pleadings are not an abuse of the process of the Court.
(d)In all the circumstances, the pleadings should not be struck out.
Mr David Morris’ affidavit
[9] Mr David Morris has made an affidavit in support of his opposition to Mr Richard Morris’ application for strike-out.8 It annexes three documents:
(a)a series of file notes and correspondence relating to attendances in 2018 by Mr John Kearns, who is a partner in the law firm of Shieff Angland and one of Mrs Morris’ lawyers;
(b)a report prepared by Beattie Varley, Forensic Accountants, along with the appendices to the report; and
(c)bank account statements provided by the executors apparently held in the name of Mr Richard Morris at Kiwibank.
Legal principles
Rule 15.1 of the High Court Rules 2016 provides:
15 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
8 Affidavit of David Christopher Stafford Morris in support of notice of opposition dated 24 October 2023.
[11]There are established criteria for strike out:9
(a)A strike out application proceeds on the assumption that the pleaded facts are true, unless those pleaded facts are entirely speculative or without foundation.
(b)The cause of action or defence must be clearly untenable.
(c)The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law.
(e)The Court should be slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation.
[12]In relation to strike out on the grounds set out in r 15.1(b) to (d):
(a)Rule 15.1(1)(b): “Likely to cause prejudice or delay” requires an element of impropriety and abuse of the Court’s processes.10 Examples include an “overwhelmingly prolix”pleading;11 a scandalous and irrelevant proceeding (a lay litigant’s“diatribe”);12 excessive pleadings of matters of evidence;13 unintelligible pleadings;14 and allegations that were conceded to be “wholly irrelevant” to the pleaded claims.15
9 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267; Couch v Attorney- General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
10 Commissioner of Inland Revenue (CIR) v Chesterfields Preschools Ltd [2013] NZCA 53 at [89].
11 At [90] and [95].
12 Van der Kaap v A-G (1996) 10 PRNZ 162 (HC).
13 Commissioner of Inland Revenue (CIR) v Chesterfields Preschools Ltd, above n 10, at [91] and [95].
14 At [90] and [95].
15 Cayman Spectrum (NZ) Co v Spark New Zealand Trading Ltd [2023] NZCA 428 at [51].
(b)Rule 15.1(1)(c): A “frivolous” proceeding “lacks the seriousness required of matters for the Court’s determination”.16 A “vexatious” one involves impropriety, often procedural.17
(c)Rule 15.1(1)(d): “Otherwise an abuse of process” captures other instances of misuse of the Court’s processes, such as a proceeding that has been brought with an improper motive or is an attempt to obtain a collateral advantage.18 The onus of establishing abuse of process is a heavy one.19
Analysis
[13] The issue to be determined in this judgment is whether the sections of the plaintiffs’ amended statement of claim dated 9 August 2023 (the ASOC), which Mr Richard Morris seeks to strike out, are likely to cause prejudice and delay (r 15.1(b)), are frivolous or vexations (r 15.1(c)) or are an abuse of the process of the Court (r 15.1(d)).
General submissions of the parties
[14] Mr Napier for Mr Richard Morris, highlights the essential elements the Court will be required to consider in relation to each of the three causes of action pursued by the plaintiffs. He refers to the principles summarised by the High Court in relation to undue influence in the decision in Green v Green.20 He then outlines the principles relating to the assessment of testamentary capacity as set out by the Court of Appeal in Woodward v Smith21 where the Court affirmed and re-stated the principles laid down in the judgment of Banks v Goodfellow.22
16 Deliu v Hong [2011] NZAR 681 (HC) at [22].
17 Commissioner of Inland Revenue (CIR) v Chesterfields Preschools Ltd, above n 10, at [89].
18 At [89].
19 Williams v Spautz (1992) 174 CLR 509 (HCA) at 529.
20 Green v Green [2015] NZHC 1218.
21 Woodward v Smith [2009] NZCA 215 at [19].
22 Banks v Goodfellow (1870) LR 5 QB 549.
[15] Lastly, and by way of the background to his submissions, Mr Napier referred to section 14 of the Wills Act 2007. Under section 14, the Court has a discretionary power to validate a document that meets the other jurisdictional requirements of section 14(1) (i.e. the document appears to be a will and does not comply with the requirements of s 11) if it is satisfied that the document expressed the deceased’s testamentary intention.
[16] Having set out the background elements relating to the three causes of action Mr Napier submits that in assessing the matters in r 15.1 it is useful to identify issues that would fall to be determined by the Court at trial. He submits that the focus in these proceedings would be on:
(a)the circumstances under which Mrs Morris executed the codicil, including Mrs Morris’ testamentary capacity at the time of giving instructions and executing the codicil and; whether the codicil was a result of Mrs Morris’ exercise of her own free will (the plaintiffs’ allegations being that the codicil was procured by Mr Richard Morris by exercising undue influence over Mrs Morris);
(b)whether Mrs Morris was of full testamentary capacity when she gave instructions for and/or executed the codicil; and
(c)if the codicil is set aside, whether the draft 2018 will that Mrs Morris did not execute reflected Mrs Morris’ settled testamentary intentions at the time of her death.
[17] Mr Napier submits that the paragraphs of the ASOC which Mr Richard Morris is seeking to strike out are irrelevant to the Court’s determination of the issues to be addressed. He submits that many of the pleadings are also demonstrably brought for an improper purpose of seeking to impugn Mr Richard Morris’ integrity and to generally disparage his reputation and good character. He submits that the pleadings are vexatious and an abuse of the Court’s processes.
[18] Mr Cundy for the plaintiffs, submits that the plaintiffs oppose Mr Richard Morris’ application to strike out parts of the ASOC. In summary, he submits that:
(a)the application is misconceived as there is nothing defective about the ASOC and no basis for any parts of it to be struck out;
(b)the parts of the ASOC to which Mr Richard Morris objects are directly relevant to the broad factual enquiries the Court will be required to conduct at the trial in relation to the three pleaded causes of action; and
(c)the application wrongly conflates alleged concerns about the form of the pleadings with matters relating to the admissibility, relevance and weight of the evidence, which are matters for the trial judge that cannot be resolved in a strike-out application.
[19]In relation to the first cause of action, Mr Cundy, makes the following points:
(a)Direct evidence of undue influence is not to be expected and cases usually turn upon the strength of the circumstantial evidence. The question is whether undue influence is to be inferred from all the surrounding circumstances, citing Re Dudley (Deceased)23 and Green v Green24 and Gorringe v Pointon.25
(b)All the circumstances bearing directly or indirectly upon the free will of the will-maker at the time of execution are relevant. These include illness, pain and suffering, physical weakness and mental deterioration. They also include dependency on others in legal, business, social, medical and/or domestic matters; any powerful need, obligation or vulnerability which others might be in a position to exploit, citing Re Dudley. In addition, control of the will-maker’s finances is a relevant factor, citing Gorringe v Pointon.
23 Re Dudley (Deceased) HC Auckland P1042/92, 14 May 1993, at 11-12.
24 Green v Green, above n 20.
25 Gorringe v Pointon [2023] NZCA 426 at [25]-[26].
(c)The party alleging undue influence in respect of an inter vivos disposition may rely on an evidential presumption of influence if there is a relationship of influence and the transaction “calls for explanation”. Whether the evidential presumption is also available in respect of a challenge to a will is not settled in New Zealand, citing Gorringe v Pointon.
(d)In any event, all the circumstances in which the will was made relevant in establishing the fact of undue influence, including the circumstances which in the case of inter vivos dispositions would give rise to the presumption of undue influence, citing Norton v Carey.26
[20] Mr Cundy also notes that under s 14(3) of the Wills Act the Court is entitled to consider any evidence on the deceased person’s testamentary intentions and any evidence of statements made by the deceased person.
[21] As a general response to Mr Richard Morris’ application for strike out, Mr Cundy submits:
(a)There is nothing unusual or defective about the ASOC as it is concisely drafted, is not excessively long, does not plead unnecessary matters of evidence, and is perfectly intelligible to the defendants and the Court. Accordingly, it meets all the requirements of a pleading.
(b)The ASOC pleads relevant matters of background. This includes Mrs Morris’ engagement with two firms of solicitors before giving instructions for the draft 2018 will, the circumstances in which she subsequently purported to execute the codicil, her mental and physical health at the time, and the extent of Mr Richard Morris’ influence over Mrs Morris personally as well as her property and finances.
26 Norton v Carey & Ors HC Auckland, M191-9595, 1 July 1996, at 54-55.
(c)The plaintiffs’ case is a circumstantial one, based on the totality of factors that independently point to the conclusion that the codicil was procured by Mr Richard Morris’ undue influence.
(d)The first cause of action sets out the basis for the plaintiffs’ claim of undue influence in an appropriate level of detail. It identifies the circumstances the plaintiffs say give rise to the inference of undue influence, including Mrs Morris’ vulnerability to influence and exploitation by Mr Richard Morris, the trust and confidence she placed in him, and her mental and physical condition.
(e)The points to which Mr Richard Morris objects are directly relevant to the broad factual enquiries the Court will be required to conduct in assessing the undue influence claim and the two other causes of action. Accordingly, there is no basis for those paragraphs to be struck out as irrelevant, or for the Court to infer (in the absence of any testing of the evidence) that they are pleaded for a collateral purpose.
Paragraphs of the ASOC sought to be struck out
Paragraphs 8 to 13
[22] Paragraph 8: Mr Napier submits that Mrs Morris and Mr David Morris’ historic engagement of Cook Morris Quinn solicitors are irrelevant to Mrs Morris’ testamentary capacity at the time she provided instructions to other solicitors regarding the draft 2018 will or the codicil. He submits that it is also irrelevant whether the codicil was a result of the exercise of Mrs Morris’ free will. He submits the matters pleaded at paragraph 8 are also frivolous as they are of little value or importance to determining the validity of the testamentary documents.
[23] Paragraphs 12 and 13: Mr Napier submits the pleading that Mrs Morris purportedly raised concerns with Mr Cook in 2017 and with Mr John Lamborn during 2018 regarding Mr Richard Morris’ conduct is temporally disconnected from the preparation and execution of the codicil in June 2019. He submits that these
generalised allegations provide no assistance to the Court in the assessment of whether or not, at the time the codicil was prepared and executed, Mr Richard Morris not only had the means and opportunity to unduly influence Mrs Morris but also exercised such a power and that the codicil would not have resulted but for that exercise.
[24] Paragraph 10: Mr Napier submits that the reasons for Mrs Morris consulting Mr Kearns of Shieff Angland in 2018 has no bearing on her testamentary capacity at the relevant times and it is irrelevant to the exercise of her free will in giving Mr Kearns instructions regarding the codicil or any other issues that need to be addressed.
[25] Paragraph 11: Mr Napier submits that matters concerning Mr Richard Morris’ management of the RedFire Nursery Limited, are wholly irrelevant to Mrs Morris’ estate and can only be pleaded for the purposes of casting Mr Richard Morris in a negative light. He submits any concerns that Mrs Morris might have had regarding the company are of little to no value or importance in consideration of her testamentary capacity and wishes at the relevant time.
[26] In response, Mr Cundy submits that paragraphs 8 to 13 give relevant background concerning Mrs Morris’ long-standing relationship with two firms of solicitors and the instructions she gave them leading up to the draft 2018 will. In particular, Mr Cundy submits that these pleadings are relevant for the following reasons:
(a)Mrs Morris raised serious concerns about Mr Richard Morris’ conduct with Mr Andrew Cook of Cook Morris Quinn in late 2017, and with Mr John Kearns of Shieff Angland in March 2018 which led to the preparation of the draft 2018 will by Mr Kearns in May 2018.
(b)It was only eight months later, at a time when Mrs Morris was unwell, that instructions were given to a new lawyer with whom Mrs Morris had no prior relationship with, John Lamborn of Inder Lamborn & Co. The instructions to prepare the codicil purported to benefit Mr Richard Morris disproportionately at the expense of the plaintiffs, and in the
manner that directly contradicted Mrs Morris’ instructions to Mr Cook and Mr Kearns.
[27] Mr Cundy submits that these are plainly relevant to the factual enquiries the Court will need to make in assessing the totality of evidence of undue influence and whether the draft 2018 will expressed Mrs Morris’ testamentary intentions. He submits that the weight to be given to those evidentiary matters is for the trial judge to determine.
Conclusion in respect of paragraphs 8 to 13
[28] I am of the view that these paragraphs should not be struck out from the ASOC. The assessment of whether undue influence has occurred in relation to the making of a testamentary instrument and whether an unexecuted will represents the testamentary intentions of the testator, requires an examination of the totality of evidence from which the Court can draw inferences. The instructions given by Mrs Morris to the previous solicitors should not be struck out from the pleadings. The inconsistency between those instructions and the codicil are clearly relevant to issues the Court will need to consider in assessing whether the claim of undue influence is made out by the plaintiffs. In addition, the instructions given to Mr Kearns leading to the preparation of the draft 2018 will are clearly relevant to whether the draft 2018 will represents Mrs Morris’ testamentary intentions.
Paragraph 26
[29] Mr Napier submits the pleading that Mr Richard Morris had control over Mrs Morris’ property and finances, including access to various bank accounts in the name of Mrs Morris in the years leading up to her death, provides little to no assistance in determining specific questions of whether the codicil was a result of Mrs Morris’ exercise of her own free will or was the result of undue influence by Mr Richard Morris. He further submits that Mr Richard Morris was legitimately involved in many of Mrs Morris’ property, business and financial affairs in the years leading up to her death, and if he was required to respond to this pleading this would be time-consuming and needlessly prolong the proceedings.
[30] In response to this, Mr Cundy submits the authorities make it clear that a factor relevant to the Court’s assessment of undue influence is the degree of control which Mr Richard Morris had over Mrs Morris’ property and finances.
Conclusion in respect of paragraph 26
[31] I am of the view that this paragraph should not be struck out from the ASOC. The Court, in Gorringe v Pointon,27 made it clear that control of the will-maker’s finances is a relevant factor of undue influence. Accordingly, this part of the pleading is relevant to the factual matrix which must be assessed by the Court in determining if Mrs Morris was unduly influenced.
Paragraphs 27 to 33
[32] Paragraph 27: Mr Napier submits that it pleads the irrelevant matters relating to Mr Richard Morris’ domestic affairs with his ex-wife and children. He submits that the only apparent purpose of the plaintiffs’ pleading in such matters is to try and denigrate Mr Richard Morris’ character.
[33]There was no specific response on this paragraph from Mr Cundy.
[34] Paragraphs 28 to 33: Mr Napier submits the remuneration, income and other monetary benefits that Mr Richard Morris received from Cranbrook Farms and/or MTC Perennials is of little to no value or importance to the issues properly falling to be determined in these proceedings. He submits the suggestion that Mr Richard Morris has misrepresented his interest in MTC and/or level of remuneration in unrelated Court proceedings. He submits that statutory declarations is also vexatious, an abuse of the Court’s process, and will cause prejudice or delay if evidence and cross-examination is required on these matters.
[35] In response to these paragraphs, Mr Cundy submits the paragraphs plead that at the relevant times Mr Richard Morris represented he was receiving minimal wages as a farm worker when in fact he was using Mrs Morris’ name, assets and money in
27 Gorringe v Pointon [2022] NZHC 342 at [175].
MTC Perennials for his own benefit. He submits these are matters relevant to the Court’s assessment of undue influence, including the extent of Mr Richard Morris’ control over Mrs Morris’ property and finances, and her vulnerability to influence and exploitation by him. Mr Cundy also submits they are relevant to Mr Richard Morris’ credibility.
Conclusion in respect of paragraphs 27 to 33
[36] I am of the view that these paragraphs should not be struck out from the ASOC. In my view, they are relevant to the overall assessment of the degree of influence and control Mr Richard Morris had over Mrs Morris’ property and finances. Therefore, it is a relevant factor in the Court’s assessment of whether undue influence existed. They are also relevant to Mr Richard Morris’ credibility.
Paragraphs 34 to 37
[37] In relation to these paragraphs, Mr Napier complains that they are seeking to introduce allegations made in a separate High Court proceedings brought against Mr Richard Morris. He submits the issues in the two proceedings are entirely different and not only are these matters irrelevant to the present proceedings, but the plaintiffs are effectively asking the Court to make findings on issues that are central to another proceeding before the Court. He submits this is both improper and logically done for the purposes of obtaining a collateral benefit.
[38] In relation to these paragraphs, Mr Cundy submits the paragraphs plead that Mr Richard Morris systematically misappropriated at least $870,341.02 from Mrs Morris by wrongly claiming that the payments he made were legitimate business expenses of MTC Perennials. He submits the misappropriations are relevant to several aspects of the plaintiffs’ claim, including:
(a)Mr Richard Morris’ control over Mrs Morris’ property and finances and her vulnerability to influence and exploitation by him.
(b)Mrs Morris’ understanding of her assets and ability to make informed decisions at the time she purported to execute the codicil.
(c)Mrs Morris’ concerns, as expressed to Mr Kearns, that Mr Richard Morris was misusing her money, which led to Mrs Morris instructing Mr Kearns to prepare the draft 2018 will.
(d)Mr Richard Morris’ credibility.
[39] Mr Cundy notes the fact that the executors of Mrs Morris’ will had engaged experienced forensic accountants, Beattie Varley, to prepare a forensic report in respect of the misappropriations by Mr Richard Morris. He submits that it amounts to corroborating the evidence of the plaintiffs’ claims and are relevant to the assessment of undue influence. He submits that the matters addressed in the report of Beattie Varley in relation to Mr Richard Morris’ control of Mrs Morris’ property and finances more generally are part of the factual matrix from which the Court will be asked to draw an inference that the codicil was procured by Mr Richard Morris’ undue influence and that the draft 2018 will represented her testamentary intentions.
Conclusion in respect of paragraphs 34 to 37
[40] I am of the view that these paragraphs should not be struck out from the ASOC. The issues being raised in separate proceedings against Mr Richard Morris by the executors are relevant to the degree of control Mr Richard Morris had over Mrs Morris’ property and finances. It is part of the relevant factual matrix that the Court must consider when determining whether the plaintiffs have made out the claim of undue influence.
[41] There is a caveat to the paragraphs remaining in the pleadings. Care must be taken in the case management of hearings of these proceedings and the separate proceedings by the executors. It is important that this proceeding does not result in a premature determination of factual matters relevant in the proceedings brought by the executors.
Result
[42] As a result of the conclusions, I have reached at paragraphs [28], [31], [36] and [40], I am of the view that Mr Richard Morris’ application to strike out parts of the ASOC should be dismissed.
Orders
[43]I make the following orders:
(a)Mr Richard Morris’ application to strike out parts of the ASOC is dismissed.
(b)As the plaintiffs are the successful party, costs should follow the event. Counsel are directed to endeavour to agree costs and failing agreement being reached within a period of 20 working days from the date of this judgment, counsel for the plaintiffs will file a memorandum as to costs (not to exceed five pages) within five days after the expiry of the 20 working day period, and counsel for Mr Richard Morris will file a memorandum (not to exceed five pages) in response within five working days of receipt of counsel for the plaintiffs’ memorandum. A decision as to costs will then be made on the papers.
…………………………….. Associate Judge Taylor
Solicitors:
Morris Legal (Sally R Morris), Auckland, for the Plaintiffs
K3 Legal Limited (Peter Napier), Auckland, for the Second Defendant
Copy for:
Jack P Cundy, Auckland, for the Plaintiffs
David P H Jones KC, Lorne Street Chambers, Auckland, for the Defendants
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