Hayes v Parlane - [2014] NZHC 1306

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-000269 [2014] NZHC 1306

UNDER
the Declaratory Judgments Act 1908 and

Part 18 of the High Court Rules

BETWEEN

KELLY SUZANNE HAYES and ANDREW NATHANIEL HAYES as the Executors and Trustees of the Estate of MARLENE RUTH KEEYS

Plaintiffs

AND

DOUGLAS FREDERICK PARLANE Defendant

Hearing: 3 and 4 June 2014

Counsel:

J G Ross for the Plaintiffs
A M Swan for the Defendant (granted leave to withdraw)

Judgment:

11 June 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 11 June 2014 at 11.00 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: J G Ross, Whangarei
A M Swan, Auckland

Copies To: SwanLaw (G P Swanepoel), Whangarei
Titirangi Law Centre (R D Ganda), Auckland

HAYES v PARLANE [2014] NZHC 1306 [11 June 2014]

[1] On 3 June 2014, I delivered a result ruling in which I ordered that the defendant’s late filed affidavits in this proceeding not be read. My reasons for this ruling now follow.

[2] The issue that arose for consideration was whether a defendant who had taken no steps to comply with timetable orders for the filing of his evidence and who had offered no proper explanation for this conduct should have the evidence excluded from consideration at the substantive hearing.

[3] The ruling did not prohibit the defendant, who had filed a statement of defence and counterclaim, from being represented at the hearing for the purpose of cross-examining the plaintiffs’ witnesses and making legal submissions opposing the plaintiffs’ case. However, the exclusion of the defendant’s evidence would have severely hampered the defendant’s counsel from making any headway in opposing the plaintiffs’ case. Accordingly, after the ruling was given the defendant’s counsel sought and was given leave to withdraw. The hearing then proceeded by way of formal proof.

[4] The plaintiffs are the executors and administrators of the estate of the late

Marlene Ruth Keeys (“the estate”), who died on 18 November 2012. On 22 January

2013, the defendant, Douglas Parlane, gave notice under s 61 of the Property (Relationships) Act 1976 to the plaintiffs that he claimed an interest in the estate as the late Ms Keeys’ surviving de facto partner. After giving notice of this claim the defendant took no further steps to advance it.

[5] On 13 May 2013, the plaintiffs filed an application in this Court for an order under the Declaratory Judgments Act 1908 that the defendant was not in a de facto relationship with the late Ms Keeys for the five years prior to her death.

[6] On 10 July 2013, the defendant responded by filing a statement of defence; later on 5 August 2013, he filed an amended statement of defence and counterclaim. In the counterclaim he sought an order under the Declaratory Judgments Act that he was in a de facto relationship with the late Ms Keeys for a period of approximately five years prior to her death.

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 Hayes v Parlane

Details

AGLC: Hayes v Parlane [2014] NZHC 1306
Case: [2014] NZHC 1306
Decision Date: 11 June 2014

CaseChat Overview and Summary

In Hayes v Parlane, the plaintiffs, Kelly Suzanne Hayes and Andrew Nathaniel Hayes as executors and trustees of the estate of Marlene Ruth Keeys, sought a declaration that Douglas Frederick Parlane was not in a de facto relationship with the deceased. Parlane, the defendant, counterclaimed that he was in a de facto relationship with the deceased. The High Court of New Zealand was tasked with determining whether the defendant's late filed affidavits should be admitted into evidence. The court found that the defendant's failure to adhere to the timetable orders and High Court Rules demonstrated a blatant and deliberate disregard for the court's procedural requirements. Given the significant prejudice caused to the plaintiffs and the importance of maintaining the integrity of the court's procedural rules, the court ruled that the defendant's affidavits would not be read in the hearing. Consequently, the defendant's evidence was excluded, and the plaintiffs were awarded costs at category 2B for their time and effort in opposing the reading of the defendant's affidavits.

Orders