Kawana-Mouat v Mouat
[2018] NZHC 1758
•17 July 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2018-441-13
[2018] NZHC 1758
UNDER the Administration Act 1969 and the Succession (Homicide) Act 2007 IN THE MATTER
of an application to follow assets
BETWEEN
LAINE ANDREW KAWANA-MOUAT
Plaintiff
AND
SUSAN ELIZABETH MOUAT
Defendant
Hearing: 12 July 2018 Appearances:
G Hamlen-Williams for plaintiff S Kang for defendant
Judgment:
17 July 2018
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
Background and issue for determination
[1] Bruce Kevin Mouat died intestate in Wellington on 27 July 2011. He pre-deceased his wife, Susan Elizabeth Mouat (the defendant), his son from a previous relationship, Laine Andrew Kawana-Mouat (the plaintiff) and his and the defendant’s daughter, Geena Magdalena Mouat.
[2] Letters of administration were granted to the defendant on 21 November 2011. Under the Administration Act 1969 she was the sole beneficiary of the estate. It is common ground that the value of the estate was $129,746.18.
KAWANA-MOUAT v MOUAT [2018] NZHC 1758 [17 July 2018]
[3] In June 2012 the plaintiff commenced proceedings pursuant to the Family Protection Act 1955 for provision from the estate.
[4] His claim was resolved in a deed of family arrangement entered into in July 2012. Under this he received $62,375. The balance of the estate totalling $67,371.18 was then paid out to the defendant.
[5] Five years later the Crown charged the defendant with unlawful act manslaughter under s 160(2)(a) of the Crimes Act 1960 in relation to the deceased’s death. She pleaded guilty. On 13 October 2017 she was convicted and sentenced.
[6] On 28 February 2018 the plaintiff commenced this proceeding claiming that under the Succession (Homicide) Act 2007 the defendant was disentitled to inherit and claiming $33,685.59 being half of the amount received by the defendant (on the basis that if the defendant was not entitled to receive the $67,371.18 from the deceased’s estate then under the Administration Act the plaintiff and Geena were each entitled to half of what the defendant had received).
[7] The plaintiff applies for summary judgment. Aside from the originating documentation — notice of proceeding and statement of claim — the Court has the plaintiff’s notice of application, the defendant’s notice of opposition, the plaintiff’s affidavit in support of her application dated 23 February 2018 and the defendant’s affidavit in reply dated 11 April 2018.
[8] This being an application for summary judgment the ultimate question is whether the plaintiff is able to discharge the burden of establishing that the defendant has no defence to his claim.1
The plaintiff’s case
[9] It is common ground that the Succession (Homicide) Act was intended to codify the law relating to when a person responsible for the death of another is disentitled to take property on the deceased’s death.
1 Krukziener v Hanover Finance Ltd (2008) 19 PRNZ 162 at [26].
[10] The plaintiff’s case is that the Act applies here so as to disentitle the defendant to the $67,371.18 already referred to. Ms Hamlen-Williams advanced the argument on the following basis:
(a)a “killer” is disentitled to take property on an intestacy or under the will of his or her “victim”;2
(b)a certificate issued under the Sentencing Act 2002 is conclusive evidence for the purposes of the Succession (Homicide) Act that the killer is guilty of homicide;3
(c)it follows that the defendant’s conviction in this case, proved by the certificate of conviction in evidence, disentitles her to the $67,371.18 she has received;
(d)in such circumstances the property is disposed of as if the killer had pre-deceased his or her victim;4
(e)the Administration Act provides that on the death of a surviving parent his or her children inherit the estate in equal shares meaning that the defendant and Geena, the deceased’s only children, are entitled to half each of the $67,371.18.
An arguable defence
[11] The defendant says that she has an arguable defence and on that basis she invites the Court to decline summary judgment.
[12]Before me Mr Kang developed this argument on several bases.
2 See s 4 of the Act for definitions of “killer” and “victim”, and s 7 (2).
3 See s 14(1).
4 See s 7(3).
Appropriateness of summary proceeding here
[13] Mr Kang referred to what he submitted was “an apparent conflict” between the definitions of homicide in the Crimes Act and the Succession (Homicide) Act. This conflict, he contended, arose because the Crimes Act includes amongst the categories of culpable homicide killing by unlawful act which might involve negligence whereas the Succession (Homicide) Act defines the term so as to exclude a killing “caused by negligent act or omission”.
[14] Section 150A of the Crimes Act defines the standard of care a breach of which may result in a person being guilty of culpable homicide for the purposes of s 160(2)(a) or (b). The section refers to “a major departure from the standard of care expected of a reasonable person”. That definition certainly excludes mere negligence.
[15] It is true that, as at the date of the events which lead to the defendant’s conviction, s 150A did not apply to s 160(2)(a) (unlawful act manslaughter), the charge the defendant faced, but only to s 160(2)(b) (omissions without lawful excuse to perform or observe legal duty). However, in R v Powell5 the Court of Appeal concluded that the “major departure” test applied to both s 160(2)(a) and (b).
[16] Thus I see no conflict between the Crimes Act and Succession (Homicide) Act definitions. The whole point of s 150A of the Crimes Act — both in its original 2007 form (applying to s 160(2)(b)) and in its expanded 2012 form (applying to both s 160(2)(a) and (b)) was to clarify that culpable homicide did not include “mere negligence” but required a more serious breach. Exactly the same idea is reflected in the definition of homicide in s 4 of the Succession (Homicide) Act which Mr Kang correctly says excludes negligent act or omission.
[17] Mr Kang went on to submit that there are no authorities addressing this conflict. That is correct. Possibly because there is no conflict.
[18] His submission was that the summary judgment process was inapt to “make new law”.
5 R v Powell [2002] 1 NZLR 666 (CA).
[19] In relation to this he referred me to Autex Industries Ltd v Auckland City Council6 where the Court of Appeal expressed reservations about the appropriateness of the summary judgment procedure in cases involving novel points of law.
[20] I reject this argument. First, on the plaintiff’s case the definition of homicide in s 4 of the Succession (Homicide) Act is irrelevant so that in order to find for the plaintiff on the basis of his case as presented I would not need to consider the relationship between the Crimes Act and Succession (Homicide) Act definitions. Second, I do not see the conflict Mr Kang advances as I have already said. Third, in my view, in Autex the Court of Appeal was talking about novel and complex areas of law. This case involves an exercise in statutory interpretation for which the summary judgment process is quintessentially appropriate.
Whether the defendant’s conviction is caught by the Succession (Homicide) Act
[21] Mr Kang’s second contention is that in determining the plaintiff’s application for summary judgment it is necessary for the Court to make an assessment of the nature of the defendant’s offence so as to determine whether it falls within the definition of homicide in the Succession (Homicide) Act and more particularly whether it involved mere negligence or something more serious.
[22] Mr Kang submitted that there is insufficient evidence before the Court relating to the circumstances of the offending to enable the Court — especially in the context of a summary judgment application — definitively to determine whether or not the defendant’s killing of the deceased resulted from negligence, recklessness or otherwise.
[23]I agree.
[24] If the position is as Mr Kang contends that the plaintiff needs to establish by reference to the evidence of the incident itself the degree of the defendant’s culpability then, in my view, the evidence is inconclusive.
6 Autex Industries Ltd v Auckland City Council [2000] NZAR 324 (CA).
[25] All that is before the Court is the police summary of facts and the defendant’s affidavit evidence. Certainly, the defendant having pleaded guilty to the charge, she is not in a position to deny the accuracy of the police summary of facts. But all that summary establishes is that the charge was laid pursuant to s 160(2)(a) of the Crimes Act (unlawful act manslaughter), that the defendant pushed the deceased in the course of a heated argument, thereby establishing the unlawful act, being an assault, and that the deceased fell hitting his head which injury ultimately lead to his death in hospital a week and a half later. The defendant’s affidavit evidence adds nothing to this.
[26] However, the plaintiff’s case is that it is unnecessary for the Court to make that judgment — that the definition of homicide in the Succession (Homicide) Act is irrelevant here.
[27]That argument is based on s 14(2) of the Act.
[28]Section 146A of the Sentencing Act 2002 provides:
(1)On or at any time after sentencing a person for an offence against any Act of unlawfully killing another person ... a court may certify that for the purposes of the Succession (Homicide) Act 2007 the person convicted is guilty of homicide of that other person … .
[29] Such a certificate is before the Court. It was issued on 11 January 2018. It provides:
I, Nathan Lewis, Deputy Registrar of the High Court of New Zealand, Do Hereby Certify that at the sitting of the High Court at New Plymouth on the 13th day of October 2017, SUSAN ELIZABETH MOUAT was convicted on the charge of manslaughter on the death of Bruce Kevin Mouat.
[30] Although the certificate does not expressly say so it is clear that it was issued pursuant to s 146A of the Sentencing Act and Mr Kang did not contend otherwise.
[31]Section 14(2) of the Succession (Homicide) Act 2007 provides:
(2)A certificate issued under section 146A of the Sentencing Act 2002 is conclusive evidence that a person convicted of an offence of unlawfully killing another person … is for the purposes of this Act guilty of the homicide of that other person … .
[32] Ms Hamlen-William’s submission, which I accept, is that, where proceedings under the Succession (Homicide) Act are based on a conviction for culpable homicide under the Crimes Act, and where a certificate of that conviction issued pursuant to s 146A of the Sentencing Act is before the Court, the Court must accept that the person convicted of the offence has committed a homicide for the purposes of the Succession (Homicide) Act.
[33] An obvious question is why, then, is there a definition in s 4 of the term homicide. The answer is that the Succession (Homicide) Act can apply even if there is no prosecution of a killer. In such circumstances the plaintiff would need to establish the homicide by calling evidence as to the circumstances of the killing and it is for that purpose that the definition exists.
[34] Even if I am wrong in that conclusion, it seems to me that the plaintiff might also have advanced his case on the alternative basis that since the Court of Appeal’s decision in R v Powell, to which I have already referred, the law has been that in order for a prosecution for culpable homicide pursuant to s 160(2)(a) of the Crimes Act to succeed, it must be established that the accused’s actions constituted more than mere negligence and involved “a major departure from the standard of care expected of a reasonable person”.
[35] It follows that a conviction for unlawful act manslaughter under s 162(2)(a) of the Crimes Act must at very least have involved recklessness and therefore by definition falls within the s 4 definition in the Succession (Homicide) Act.
Geena’s potential claim
[36] A further defence advanced on the defendant’s behalf is that the deceased and the defendant’s daughter, Geena, may have a claim under the Family Protection Act 1955.
[37] As I understand it the argument is that whilst her mother, the defendant, was in receipt of the $67,371.18 from the deceased’s estate under the deed of family arrangement, Geena would not have had a viable claim, but that if the defendant is
disentitled to those monies and obliged to disgorge half of them to the plaintiff, Geena may have a claim.
[38] That may well be right. But I do not understand how it can be contended that that happenstance should stand in the way of the plaintiff’s claim, or somehow confer on the Court a discretion to circumvent the clear terms of the Succession (Homicide) Act.
[39] In any event, the practical answer in the present circumstances, would appear to me to be obvious. First, Geena may have a claim for the remaining $33,685.59. Second it may still be possible for her to pursue a claim under the Family Protection Act. Be that as it may, I do not accept that if the plaintiff’s succeeding in this proceeding were to give rise to a theoretical claim on Geena’s part, that is a reason for not applying the law here.
Quantum of damages
[40] The final point raised on the defendant’s behalf by Mr Kang relates to the relief sought.
[41] As Mr Kang submits s 7(3) of the Succession (Homicide) Act provides that where a killer is not entitled to property as a result of its application any interest in the property that a killer not entitled to under the Act is to pass or be distributed as if the killer had died before the killer’s victim.
[42] Had the defendant pre-deceased the deceased in this case the Administration Act would have required the net value of his estate — the $129,746.18 — to be distributed equally between the plaintiff and Geena. Under the deed of family arrangement entered into in July 2012 the plaintiff received $62,375. On one view, the plaintiff is only entitled to a further $2,498.09 as Geena is entitled to half of the
$129,746.18 or $64,873.09.
[43] Kang submitted that if the plaintiff was successful that is the approach that should be taken to damages.
[44] Ms Hamlen-Williams submitted that s 7(3) applies only to the $67,371.18 received by the defendant, that is to say the residue of the estate after the deduction of the $62,375.00 to which the plaintiff became entitled under the deed of family arrangement.
[45] This is not an especially easy matter of interpretation to resolve. On the one hand it might be said that in terms of s 7(2) the property that a killer is “… not entitled to…” is the net value of the estate. On that basis it might be contended — as Mr Kang contends — that the property that must be distributed as if the killer had pre-deceased the victim under s 7(3) is also the net value of the estate. That would lead to the outcome I have already outlined. On the other hand, as Ms Hamlen-Williams contends, the plaintiff’s proceeding and application for summary judgment in this case relates only to the $67,371.18 and s 7(3) focuses on property “passing”.
[46] As at July 2012 when the deed of family arrangement was entered into, the defendant had not been convicted of manslaughter and on the face of things was, in terms of the Administration Act, entitled to the full $129,746.18 net value of the deceased’s estate. In the deed of family arrangement executed in July 2012 she alienated $62,375. As a result, as at the date of her conviction, the only property that had passed to her and to which she had become disentitled by reason of the application of the Succession (Homicide) Act was the $67,371.18. That was the only property to which s 7(2) could apply as at that date. On that basis my judgement is that the plaintiff is entitled to half of that $67,371.18 being the $33,685.59 that he claims in this proceeding.
[47] Although that may appear to disadvantage Geena it must recalled that the defendant, Geena’s mother, received a substantial benefit (something like $200,000) following the deceased’s death from assets which the parties agree did not form any part of the deceased estate. Geena might reasonably expect to benefit from that both during her mother’s lifetime and after her death. And of course Geena may have a claim to the other half of the money received by the defendant — $33,685.59.
Conclusion
[48]On the above bases my conclusion is that:
(a)the plaintiff is entitled to summary judgment against the defendant in the sum of $33,685.59;
(b)the plaintiff is also entitled to interest on that sum at the relevant statutory rate or rates from 27 July 2012 being one year from his father’s death;
(c)as to costs my preliminary view is that these should follow the event in the usual way and that the plaintiff is entitled to costs on a 2B basis. But as I have not heard from counsel on costs I reserve them. If counsel are unable to settle costs, as I would expect them to do, they may file memoranda and I will deal with them on the papers.
Associate Judge Johnston
Solicitors:
Chapman Tong Law, Wellington for plaintiff Fairbrother Family Law, Napier for defendant
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