Jew v Jew - [2020] NZHC 2085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2716

[2020] NZHC 2085

BETWEEN
CHRISTOPHER GEORGE JEW

First Plaintiff

AMANDA MARIE McLAUGHLIN, DAVID JEW and
PHILLIP JEW
Second Plaintiffs

AND

DAVID GEORGE WETHERELL MICHAEL WETHERELL NICHOLAS WETHERELL and RICHARD WETHERELL

Second Defendants

KANUKA ROAD DEVELOPMENTS LIMITED

Third Defendant

Hearing: 13 August 2020

Appearances:

M J Fisher and T J Yoon for the Plaintiffs

R J Hollyman QC and A J Steel for the First and Third Defendants

Judgment:

18 August 2020

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 18 August 2020 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

Solicitors:

…………………………. Registrar/Deputy Registrar

Claymore Partners Limited (James D Ryan), Auckland, for the Plaintiffs
Lodder Law Limited (Nick Lodder), Auckland, for the First and Third Defendants
Counsel:
Michael J Fisher/Josh Yoon, Auckland, for the Plaintiffs
R J Hollyman QC/A J Steel, Auckland, for the First and Third Defendants

JEW v WETHERELL [2020] NZHC 2085 [18 August 2020]

[1] This is a decision about particulars. The plaintiffs seek particulars of two paragraphs of the first and third defendants’ amended statement of defence and counterclaim. The first and third defendants seek particulars of one small part of the plaintiffs’ statement of defence to their counterclaim.

[2] Christopher and Patricia Jew are the children of the late Zeta Mary Jew. They and David Wetherell, Patricia’s husband, are the trustees of the Jew Family Trust. The trust is the sole shareholder of Kanuka Road Developments Ltd, the third defendant. Mr Wetherell is Kanuka’s sole director. Both the trust and Kanuka Road Developments Ltd own properties in the northern Waikato, in the Hopuhopu- Ngāruawahia area.

[3] After Mrs Jew’s death, there was litigation regarding her estate, the trust and Kanuka Road Developments Ltd. The case was resolved by a deed of settlement dated 13 August 2019. For this decision, it is not necessary to go into the provisions of the deed of settlement in detail. It is enough to say that the properties owned by the trust and Kanuka Road Developments Ltd were to be sold, with real estate agents (Bayleys) appointed to market and negotiate the sales of the properties. The Kanuka Road land was to be sold by 30 November 2019. The land owned by the trust was to be sold by 1 February 2020. The deed also provided that the plaintiffs could buy properties owned by the trust and the company and no real estate agent’s commission would be paid on the sale. The deed also provided for the allocation of the proceeds of sale between Mr Jew and Patricia.

[4] Carrying out the deed of settlement has not, however, gone smoothly, with each side blaming the other. In this proceeding, the plaintiffs seek the removal of Patricia Jew and Mr Wetherell as trustees, substituting them with trustees appointed by the court, plus consequential orders. The plaintiffs allege breaches of the deed of…

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 Jew v Jew

Details

AGLC: Jew v Jew [2020] NZHC 2085
Case: [2020] NZHC 2085
Decision Date: 18 August 2020

CaseChat Overview and Summary

The case of Jew v Jew concerns an application for particulars brought by the plaintiffs against the first and third defendants, and a counterclaim by the first and third defendants against the plaintiffs. The plaintiffs seek particulars of two paragraphs in the defendants' amended statement of defence and counterclaim, while the defendants seek particulars of one part of the plaintiffs' statement of defence to their counterclaim. The defendants also sought possession of the Kanuka land occupied by the plaintiffs.

The legal issues before the court were whether the pleadings were adequate and whether the plaintiffs were entitled to particulars. The court considered whether the pleadings met the requirements of Rule 5.17(2) of the High Court Rules 2016, which states that if a party alleges a state of mind of a person, that party must give particulars of the facts relied on in alleging that state of mind. The court also considered whether the defendants' pleading was adequate to inform the plaintiffs of the case against them and to prepare their defence.

The court found that the pleadings were adequate and that the defendants were not required to give further particulars to the plaintiffs. The court noted that the defendants' pleading was backed up by particulars, and that the plaintiffs would have an opportunity to respond to the case against them at trial. The court also found that the plaintiffs were not required to give further particulars to the defendants. Regarding the request for possession of the Kanuka land, the court found that the plaintiffs had provided sufficient information to allow the defendants to oppose the claim for possession.

The outcome of the case was that the defendants were required to advise the plaintiffs of the relevant passages in the correspondence listed in paragraph 11(a)(iv) of the amended counterclaim within two weeks. Aside from that, the defendants were not required to give further particulars to the plaintiffs and the plaintiffs were not required to give further particulars to the defendants. Costs were reserved, and if the parties could not agree on costs, memoranda could be filed and the court would decide costs on the papers.

Orders