Jackson v Jackson - [2018] NZHC 985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-0084

[2018] NZHC 985

IN THE MATTER OF the estate of Ivy Jackson

BETWEEN

RAYMOND BARRY JACKSON

First Plaintiff

AND

RAYMOND BARRY JACKSON

Second Plaintiff

STEPHEN JAMES JACKSON
First Defendant

LINDA MARGARET JACKSON
Second Defendant

METRO LAW
Third Defendant

IRON BRIDGE REAL ESTATE LIMITED

Fourth Defendant

Hearing:
29 September 2017, 3 October 2017, 9 November 2017,

24 November 2017

Counsel:

C Orton for applicant (First & Second Defendant) R Butler and Y Zhang for Respondent and Plaintiffs

Judgment:

8 May 2018

JUDGMENT OF DUFFY J

JACKSON v JACKSON [2018] NZHC 985

This judgment was delivered by me on 8 May 2018 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Corban Revell, Henderson Ross Holmes, Albany
Rowan Butler, Barrister, Auckland

[1] This proceeding concerns the estate of Ivy Jackson, who died on 6 April 2015. She and her husband, the late Fred Jackson, had three children: Raymond Jackson (the plaintiff), Stephen Jackson (the first defendant), and Andrea Jackson (who died in March 2015). The second defendant, Linda Jackson, is Stephen Jackson’s wife. I shall refer to the parties by their first names to avoid confusion.

[2] Raymond issued proceedings against Stephen and Linda and others on 23 January 2017. There are six causes of action. Summary judgment was sought on the second and third causes of action. The second cause of action, which was against Stephen, alleged he had breached his fiduciary duties to Ivy as the holder of her enduring powers of attorney by converting at least $756,721.06 of her funds for his own use; failing to consult with Ivy on the sale of Ivy and Fred’s former home at Forrest Hill, North Shore, Auckland City (the Forrest Hill property); and failing to ensure the sale of the property achieved the best price. The third cause of action is against Stephen and Linda as administrators and executors of Ivy’s estate and alleges they breached their duties in this role through their failure to manage the estate in an even-handed way for the benefit of all potential beneficiaries, and in essence by placing their own interests above the proper management of the estate.

[3] On 3 May 2017, on the non-appearance of the defendants, Bell AJ entered summary judgment for Raymond on the second and third causes of action:1

[4]Stephen was to pay Raymond $836,725.16 (plus interest) for funds removed from the ANZ and Westpac accounts using his enduring powers of attorney;

[5]Stephen and Linda were to pay Raymond $258,255.75 (plus interest) for funds removed from the ANZ and Westpac accounts after Ivy died; and

[6]Stephen and Linda were to pay Raymond costs of $15,876.00 (inclusive of disbursements).

1 Jackson v Jackson [2017] NZHC 860.

[7] Stephen and Linda now apply to set aside the summary judgment, broadly on the grounds that they did not appear at the hearing before Bell AJ because…

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 Jackson v Jackson

Details

AGLC: Jackson v Jackson [2018] NZHC 985
Case: [2018] NZHC 985
Decision Date: 8 May 2018

CaseChat Overview and Summary

This proceeding concerns the estate of Ivy Jackson, who died on 6 April 2015. Ivy and her husband, the late Fred Jackson, had three children: Raymond Jackson (the plaintiff), Stephen Jackson (the first defendant), and Andrea Jackson (who died in March 2015). The second defendant, Linda Jackson, is Stephen Jackson’s wife. Raymond issued proceedings against Stephen and Linda and others on 23 January 2017. There are six causes of action. Summary judgment was sought on the second and third causes of action. The second cause of action, which was against Stephen, alleged he had breached his fiduciary duties to Ivy as the holder of her enduring powers of attorney by converting at least $756,721.06 of her funds for his own use; failing to consult with Ivy on the sale of Ivy and Fred’s former home at Forrest Hill, North Shore, Auckland City (the Forrest Hill property); and failing to ensure the sale of the property achieved the best price. The third cause of action is against Stephen and Linda as administrators and executors of Ivy’s estate and alleges they breached their duties in this role through their failure to manage the estate in an even-handed way for the benefit of all potential beneficiaries, and in essence by placing their own interests above the proper management of the estate. Stephen and Linda now apply to set aside the summary judgment, broadly on the grounds that they did not appear at the hearing before Bell AJ because they were unaware of it, and there has been a miscarriage of justice. The court considered the relevant principles for setting aside a summary judgment under this rule, which are found in Russell v Cox, where the Court of Appeal commented that although the Court is not limited in the considerations to which it may have regard in deciding whether to set aside summary judgment, three have long been considered of dominant importance: (a) That the delay is reasonably explained; (b) That the defendant has a substantial ground of defence; and (c) That the plaintiff will not suffer irreparable injury if the judgment is set aside. The court considered that Stephen and Linda had a substantial ground of defence. The evidence each opposing party relies upon is hotly disputed by the other. Whose evidence is to be preferred rests on reliability and credibility assessments of the evidence. What is plausible and what is not in the context of this family’s dynamics is impossible to gauge from their affidavit evidence. A trial is required. The court considered that Raymond will not suffer irreparable harm if the summary judgment is set aside. If he is successful in his litigation against Stephen and Linda the subject funds will then flow back into Ivy’s estate, which will be sufficient to cover the additional costs Raymond will have incurred. Stephen and Linda have assets. New Zealand judgments are readily enforceable in Australia. The attempts Raymond made to enforce the summary judgment show this to be so. Accordingly, if he is successful at trial the additional costs he will have incurred will be readily covered by an appropriate costs order. The court granted the application to set aside the summary judgment made by Bell AJ. That judgment is set aside.

Orders