Jackson v Jackson - [2017] NZHC 2506

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000084 [2017] NZHC 2506

IN THE MATTER of the estate of Ivy Jackson

BETWEEN

RAYMOND BARRY JACKSON as administrator of the estate of Ivy Jackson Plaintiff

AND

RAYMOND BARRY JACKSON Second Plaintiff

AND

STEPHEN JAMES JACKSON First Defendant

AND

LINDA MARGARET JACKSON Second Defendant

AND

METRO LAW Third Defendant

Hearing: 18 September 2017

Appearances:

R Butler and K Zhang for the Plaintiff (Respondent) No appearance for the First Defendant

No appearance for the Second Defendant
P J Napier for the Third Defendant (Applicant)

Judgment:

13 October 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 13 October 2017 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

JACKSON v JACKSON [2017] NZHC 2506 [13 October 2017]

Introduction

[1] The third defendant applies for orders that the plaintiff provides security for its costs and that proceedings be stayed until such security is given.

[2] The third defendant is the law firm, Metro Law. It acted for the late Ivy Jackson, in making eleventh-hour changes to her affairs in the year before her passing on 6 April 2015. Those changes substantially benefitted Ivy’s son, Stephen, who is the first defendant. But the changes disadvantaged Stephen’s only surviving sibling, Raymond, who is the plaintiff in the proceeding.

[3] At issue is whether Raymond would be unable to pay Metro Law’s costs should its defence be successful; and if so, whether or not it would be just in all the circumstances for the Court to exercise its discretion to order the giving of security.

The background

[4] Mrs Ivy Jackson died on 6 April 2015 aged 91. Her husband died before her, on 7 October 2014. The couple have two living children: Raymond (the plaintiff) and Stephen (the first defendant). Linda (the second defendant) is Stephen’s wife. There was also a daughter, Andrea, who died on 15 March 2015.

[5] Raymond was appointed administrator of Mrs Jackson’s estate pursuant to an order nisi issued by Toogood J on 27 July 2016. The order called on Stephen and Linda as the executors named in Mrs Jackson’s 2016 will to demonstrate why the administration of her estate should not be granted to Raymond under s 19 of the Administration Act 1969.1 No such steps were taken by Stephen and Linda within the time allowed, and the order became absolute.

Thirteenth hour changes to Mrs Jackson’s affairs

[6] Raymond commenced this proceeding in January 2016 out of concern with changes that Mrs Jackson made to her affairs in the final year of her life — changes

1 The proceeding was filed under Jackson v Jackson [2016] NZHC 1723.

that were strongly in favour of Stephen. Metro Law was heavily involved. Raymond says the changes were brought about quite suddenly following Mrs Jackson’s discharge from hospital in January 2014. He describes events as follows:

(a) Mrs Jackson met with…

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 [2017] NZHC 2506
Case: [2017] NZHC 2506
Decision Date: 13 October 2017

CaseChat Overview and Summary

In Jackson v Jackson, Raymond Jackson, as administrator of the estate of Ivy Jackson, commenced proceedings against Stephen Jackson, Linda Jackson, and Metro Law, a law firm that acted for Ivy Jackson. Raymond alleges that Metro Law should have done more to safeguard Ivy Jackson and her estate against abuse by Stephen Jackson, who stood to benefit from eleventh-hour changes to Ivy’s affairs. Metro Law seeks orders that Raymond provides security for its costs and that the proceedings be stayed until such security is given.

The legal issues before the court were whether Raymond would be unable to pay Metro Law’s costs should its defence be successful, and if so, whether it would be just in all the circumstances for the court to exercise its discretion to order the giving of security. The court considered the jurisdictional threshold of whether there was credible evidence that Raymond would be unable to pay costs if his claim failed. It found that Raymond’s claim to an indemnity from his family trust was not credible evidence of his ability to pay such costs.

The court also considered the appropriateness of ordering security for costs, taking into account the merits of Raymond’s claim, the nature of the dispute, and the conduct of the parties. The court found that the case involved an apparent conflict in the will, which raised questions about the adequacy of Metro Law’s advice. However, the court also noted that Raymond’s claim was not without difficulty, as it sought to validate a will that was not so different from the one in question.

Ultimately, the court found that it was appropriate to order Raymond to provide security for costs in the sum of $25,000, to ensure that there was some measure of compensation immediately available to Metro Law if it was successful in its defence. The court ordered Raymond to provide such security within 15 working days of the date of the judgment, failing which the proceeding would be stayed pending further order.

The court reserved leave to make further orders if necessary and ordered Raymond to pay Metro Law’s costs on the application for security plus disbursements as fixed by the Registrar.

Orders