Kinney v Pardington - [2018] NZHC 155

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2013-443-058 [2018] NZHC 155

UNDER the Family Protection Act 1955

IN THE MATTER

of the estate of KENNETH JOHN PARDINGTON (deceased)

BETWEEN

ERIN MAUREEN KINNEY Plaintiff

AND

MYRTLE MARGARET PARDINGTON, DAVID JOHN PARDINGTON AND KENNETH MARK PARDINGTON Defendants

AND

MYRTLE MARGARET PARDINGTON, DAVID JOHN PARDINGTON AND KENNETH MARK PARDINGTON Interested Parties

CIV-2017-443-73

BETWEEN ERIN MAUREEN KINNEY Plaintiff

ANDROYCE WILLIAM WOOD as Trustee of the KJ PARDINGTON FAMILY TRUST First Respondent

DAVID JOHN PARDINGTON as Trustee
of the KJ PARDINGTON FAMILY TRUST Second Respondent
KENNETH MARK PARDINGTON as Trustee of the KJ PARDINGTON FAMILY TRUST
Third Respondent
WAYNE FRANCIS McCURDY as Trustee of the KJ PARDINGTON FAMILY TRUST Fourth Respondent

KINNEY v PARDINGTON [2018] NZHC 155 [15 February 2018]

Hearing: 5 February 2018

Appearances:

C T Gudsell QC and D E G Nielsen for Plaintiff in FPA
proceedings and Trust proceedings
K A McKenzie for Defendants in FPA proceedings
S W Hughes QC for Interested Parties in FPA proceedings
D Matheson for second, third and fourth respondents

Judgment:

15 February 2018

JUDGMENT OF CULL J

[1] This decision concerns a consolidation application, seeking to consolidate Family Protection Act 1955 (FPA) proceedings, which were substantively heard in August 2016, with Trust proceedings recently filed on 10 October 2017. The plaintiff applies for consolidation of both proceedings because there are common questions of fact and/or law arising in both proceedings, relating to the historic administration of the K J Pardington Family Trust (the Trust) and the Estate of K J Pardington (the Estate). In the alternative, the plaintiff seeks particular discovery before the FPA proceeding is determined.1

[2] The FPA proceedings were adjourned on 16 August 2016 part-heard, to determine the quantum of the estate. At issue are the liabilities of the estate to the Trust, including a Deed of Assignment dated 20 December 2013, which was entered into 10 months after the date of commencement of these proceedings on 8 February
2013. In my minute of 16 August 2016 I recorded that with the Estate’s total indebtedness of $526,474.49, the Court required clarification of the appropriate deduction from the value of the Estate assets.2

Factual background

[3] Since the adjournment of the proceedings on 16 August 2016, the parties have filed numerous memoranda and evidence in response to my minute of 16 August 2016.

1 The details of the discovery sought are dealt with under the heading “Particular discovery” later in this judgment.
2 Minute of Cull J, 16 August 2016.

Over this time, certain trust documents have been provided, following requests by the plaintiff for source documentation of the trust account material made available to date.3

Trust proceedings

[4] On 10 October 2017, during the course of the exchanges of documents and memoranda, the plaintiff issued Trust proceedings against the trustees of the K J Pardington Family Trust, comprising Kenneth and David Pardington together with two independent trustees. The independent trustees are not…

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 Kinney v Pardington

Details

AGLC: Kinney v Pardington [2018] NZHC 155
Case: [2018] NZHC 155
Decision Date: 15 February 2018

CaseChat Overview and Summary

This decision concerns a consolidation application, seeking to consolidate Family Protection Act 1955 (FPA) proceedings, which were substantively heard in August 2016, with Trust proceedings recently filed on 10 October 2017. The plaintiff, Erin Maureen Kinney, applies for consolidation of both proceedings because there are common questions of fact and/or law arising in both proceedings, relating to the historic administration of the K J Pardington Family Trust (the Trust) and the Estate of K J Pardington (the Estate). In the alternative, the plaintiff seeks particular discovery before the FPA proceeding is determined. The FPA proceedings were adjourned on 16 August 2016 part-heard, to determine the quantum of the estate. At issue are the liabilities of the estate to the Trust, including a Deed of Assignment dated 20 December 2013, which was entered into 10 months after the date of commencement of these proceedings on 8 February 2013. The Trust proceedings allege breaches of trust and mistake, and seek remedies against the trustees personally. The plaintiff submits that because there are common questions of fact and/or law arising in both proceedings, particularly relating to the historic administration of the Trust, the Court should hear both proceedings together, as a view will need to be formed as to the valid liabilities of the Estate and the pattern of conduct of the Estate executors and the trustees. The Court declined to consolidate the proceedings because the FPA proceedings are awaiting a determination on the quantum of the Estate, and the Trust proceedings involve two trustees who are not parties to the FPA proceedings. However, the Court ordered the disclosure of certain documents to the plaintiff in the alternative application for particular discovery.

Orders