Hoeberechts v Sprott - [2019] NZHC 3045

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000960

[2019] NZHC 3045

BETWEEN
LINDSAY ANNE HOEBERECHTS

Plaintiff/Applicant

AND

ADRIAN JAMES SPROTT

Defendant/Respondent

Hearing:
31 October 2019

Further submissions received 12 November 2019

Appearances:

V Bruton QC and P Brown for Plaintiff/Applicant K M Wakelin for Defendant/Respondent

Judgment:

21 November 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

HOEBERECHTS v SPROTT [2019] NZHC 3045 [21 November 2019]

Introduction

[1] The plaintiff, Lindsay Hoeberechts (Lindsay), makes an application, pursuant to rr 8.19 and 8.20 of the High Court Rules 2016, for particular discovery. It is yet a further interlocutory application in these estate proceedings involving sibling parties.

[2] The deceased died in 2014, and his estate remains unadministered. The major asset of the estate, namely the deceased’s former home in Coombes Road, Remuera, with a capital value (CV) of $5.7 million, remains unsold despite the direction for sale in the will. The home has provided no income to the beneficiaries during that time.

[3] The defendant, Adrian Sprott (Adrian), is one of the executors of the estate. He is the brother of Lindsay and of the interested party, Alison Sprott (Alison). Adrian and Alison contest the application for discovery on the grounds of relevance and proportionality. They say that the application is a wide-ranging “fishing expedition”.

[4] The critical issue of relevance is to be assessed by reference to the following claims made by Lindsay:

(a)That Adrian has failed to obtain the necessary legal valuation and marketing advice and has not listed the Coombes Road property for sale within a reasonable time; and

(b)That Adrian and Alison are trustees de son tort in relation to the Sprott Family Trust and the Rodleigh Family Trust (these are fresh allegations contained for the first time in a fourth amended statement of claim).

Relevant legal principles

[5] In Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, this Court adopted a four-stage approach in considering an application under r 8.19:1

(a)Are the documents sought relevant, and if so how important will they be?

1 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14].

(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?

(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?

(d)Weighing and balancing these matters, in the Court’s discretion applying r 8.19, is an order appropriate?

[6]The relevance of documents sought is, of course, determined by the pleadings.2

Background facts

[7] The background facts are set out in the earlier interlocutory judgments of Associate Judge Bell of 27 May 20193 and Associate Judge Smith of 31 October 2018 (successful application by the defendant for further particulars).4

[8] For the purposes of these applications, the following brief chronology will suffice.

[9]The mother, Marion Sprott (Mrs Sprott), died on 31 October 2008.

[10] The…

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 Hoeberechts v Sprott

Details

AGLC: Hoeberechts v Sprott [2019] NZHC 3045
Case: [2019] NZHC 3045
Decision Date: 21 November 2019

CaseChat Overview and Summary

Lindsay Hoeberechts, the plaintiff, sought an order for particular discovery from Adrian Sprott, the defendant and executor of his late father's estate, and Alison Sprott, an interested party, in the High Court of New Zealand. The major asset of the estate, a property with a capital value of $5.7 million, had remained unsold since the death of Dr Jim Sprott in 2014. Lindsay alleged that Adrian had failed to obtain necessary legal and marketing advice and had not listed the property for sale within a reasonable time. Further, she alleged that Adrian and Alison were trustees de son tort in relation to the Sprott Family Trust and the Rodleigh Family Trust. Adrian and Alison opposed the application on the grounds of relevance and proportionality. The court was required to determine the relevance of the documents sought, whether there were grounds to believe that the documents existed, whether the discovery was proportionate, and whether, in the court's discretion, an order was appropriate.

The court found that the plaintiff's application was relevant and important, particularly given the high level of mistrust between the parties. The court noted that there were some tentative steps by the parties to try and settle all outstanding matters between them, and it was in the plaintiff's interest to have all relevant information before pursuing settlement. The court found that some of the categories of documents sought were overly broad and not proportionate, but others were relevant and important to the case. The court ordered that some documents in certain categories should be discovered, but with limitations on the scope of the orders. The court also found that the plaintiff had a prima facie entitlement to some of the documents sought, subject to the jurisdictional issue of the trusts being domiciled in Jersey. The court ordered that the defendants were to file and serve affidavits by a specified date, stating whether the documents were in their control, listing all such documents, and making them available to the plaintiff for inspection. The plaintiff was preliminarily entitled to costs on a 2B basis.

Orders