Hedges v Hedges

[2014] NZHC 592

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-3434 [2014] NZHC 592

BETWEEN

CAROL ANN HEDGES

Plaintiff

AND

ANTHONY JAMES HEDGES Defendant

Hearing:	27 March 2014
Counsel:	S Robertson for Plaintiff No appearance for Defendant
Judgment:	27 March 2014

JUDGMENT OF SIMON FRANCE J

[1]      This matter has proceeded by way of formal proof.

[2]      The plaintiff gave a power of attorney to her son whilst she was in a rest home.  At some point the son sold the plaintiff’s home and put the proceeds in a separate bank account.  This was done with the knowledge of the plaintiff ’s solicitor who did the paperwork and there is no suggestion of impropriety concerning this sale.  The proceeds were initially used to pay the rest home fees of both the plaintiff and her mother, who is the defendant’s grandmother.

[3]      In November 2012 the rest home contacted the plaintiff’s solicitor to advise that fees had not been paid for some time.   The solicitor visited the plaintiff and matters  progressed  from  there.     In  December 2012  Westpac  Bank  froze  the remaining money in the account but indicated it could not provide the plaintiff with

statements, and generally was limited in what it could do without Court direction.

HEDGES v HEDGES [2014] NZHC 592 [27 March 2014]

[4]      In  January 2013  the  defendant,  seemingly  having  become  aware  of  the changes to the account, called on the solicitor’s offices.   He declined to provide statements or details of where the money had gone.   He refused to pay over the money still in the account.  By then the plaintiff had revoked the power of attorney and notice of the revocation was served on him.

[5]      Affidavit evidence has been filed by the solicitor, Ms Shanahan, and by the plaintiff. That evidence establishes to the appropriate standard that:

(a)      the power of attorney has been validly revoked by the plaintiff, and notice of that has been served on the defendant;

(b)the  money  which  remains  in  the  Westpac  bank  account  in  the defendant’s name is the proceeds of the sale of the plaintiff’s home and the defendant has only ever held it on trust for the plaintiff’s benefit;

(c)       the defendant’s entitlement to hold the money has ended. [6]  Westpac has indicated it will abide by any orders and directions.

Orders

[7]      Accordingly, I make the following orders:

(a)      an order preventing the first defendant accessing to the funds held in account     number     03-0146-055818-00     under     the     name     of Anthony James Hedges;

(b)an order directing Westpac New Zealand Limited to provide to the plaintiff with bank statements in relation to account number 03-0146-

0555818-00   under   the   name   of  Anthony  James   Hedges   from

7 August 2012 to the date of service of the order;

(c)      an order directing Westpac New Zealand Limited to pay the funds held in account number 03-0146-055818-00 under the name of Anthony James Hedges to the plaintiff;

(d)an  order  that  the  defendant  pay  the  costs  ($7,860.50)  of  this proceeding.

Simon France J

Solicitors:

Shanahans, Solicitors, Auckland