Loo v Turei
[2022] NZHC 427
•11 March 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000890
[2022] NZHC 427
IN THE MATTER of the Estate of TE HUINGA TUREI BETWEEN
TAHUIPARE AH LOO and JACK POAI TE MOANA
Plaintiffs
AND
JOSEPHINE TUHAU TUREI
Defendant
Hearing: 9 March 2022 Appearances:
H Fulton for Plaintiffs
No appearance by or for Defendant
T Conder for J Connal, seeking to be joined as a DefendantJudgment:
11 March 2022
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 11 March 2022 at 10.00 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Richard Wood/H Fulton, Auckland Smith and Partners, Auckland
LOO v TUREI [2022] NZHC 427 [11 March 2022]
Introduction
[1] Joseph Connal seeks to be added as a defendant in these proceedings. He is the son of the defendant, Josephine Turei, and the grandson of the deceased, Te Huinga Turei. The proceedings are being brought by his aunt, Tahuipare Ah Loo and by Jack Poai Te Moana.
Background
[2] The late Te Huinga Turei died on or about 14 September 2018. She left a will dated 14 September 1992. Ms Turei was appointed as her executor and trustee in the will and she obtained probate of the will on 13 June 2019.
[3] Sometime thereafter, Ms Ah Loo found a handwritten document dated 29 April 2004. It is said that this document is in the deceased’s handwriting and that it is her last will and testament. The document purports to revoke all other wills and testamentary dispositions, and provides as follows:
I now wish to leave my entire estate to my daughter Tahuipare Ah Loo and my tamaiti whangai Jack Poai Te Moana to execute on my behalf in the best interest of the whanau.
[4] Ms Ah Loo and Mr Te Moana have sought orders recalling the grant of probate of the 1992 will and declaring that the 2004 document is the deceased’s last valid will. A declaration is also sought as to the meaning of the 2004 document.
Procedural issues
[5] Directions as to service were sought and orders were made by Associate Judge Smith directing that Ms Turei and the named beneficiaries in the 1992 will be served. One of those beneficiaries is the present applicant – Mr Connal.
[6]Mr Connal was served on 22 July 2020.
[7] Ms Turei filed a statement of defence on 21 August 2020 but no steps were taken by any of the other persons served, including by Mr Connal.
[8] On 3 December 2021, counsel for Ms Turei notified the Court that she was withdrawing her statement of defence. As a result, on 16 February 2022, Mr Connal applied to be joined as a defendant in the proceedings pursuant to r 4.56 of the High Court Rules 2016. He annexed to his application a draft of the statement of defence he wishes to file. He seeks to defend the proceedings on substantially the same grounds as were advanced by his mother in her statement of defence.
[9]Ms Ah Loo and Mr Te Moana opposed Mr Connal being added as a defendant.
[10] The substantive proceedings have been allocated a three day hearing commencing on 28 March 2022 (although Mr Fulton, appearing for Ms Ah Loo and Mr Te Moana, has applied to adjourn that fixture).
Analysis
[11]Relevantly, r 4.56 of the High Court Rules provides as follows:
4.56 Striking out and adding parties
(1)A Judge may, at any stage of a proceeding, order that—
…
(b)the name of a person be added as a plaintiff or defendant because—
(i)the person ought to have been joined; or
(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
(2) An order does not require an application and may be made on terms the court considers just.
…
[12] When determining whether to add the name of a person either as a plaintiff or defendant, there is first a jurisdictional question: objectively, is the test in either (i) or
(ii) of r 4.56(1)(b) met? If so, there is a second discretionary question: should the Court order joinder? In practice, both questions tend to become intertwined.1
[13] Here, Mr Connal’s application was not advanced under r 4.56(1)(b)(i). Rather, it was advanced under r 4.56(1)(b)(ii). Case law establishes that when two parties are in dispute and the determination of that dispute will directly affect a third person, then the Court in its discretion can allow that person to be added as a party on such terms as it thinks fit.2 One of the principal objects of the rule is to enable the Court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute without that person being given the opportunity to be heard. A flexible approach is required.3
[14] Here, Mr Connal is a named beneficiary in the 1992 will. Under the 2004 document, his interest is as a member of the deceased’s whānau. It is clear that his entitlement under the 1992 will is directly affected by the orders sought by Ms Ah Loo and Mr Te Moana.
[15] Mr Fulton, appearing for the plaintiffs, argued that Mr Connal was required, but had failed, to advance a good cogent case supported by admissible evidence to justify his joinder. I do not consider that the position is this strict. I agree with Mr Conder that Mr Connal was not required to prove his case. The strength of his defence is relevant to whether it is in the interests of justice that he be permitted to join but a detailed analysis of his prospective defence is not appropriate at this stage. It is clear that Mr Connal has a genuine and direct interest in the proceeding. In my judgment, it is necessary (in a broad sense) that he be given the opportunity to be heard, to explain matters as he sees them, and to advance his case in relation to the validity and meaning of the 2004 document. His presence is necessary to assist the Court to best adjudicate on and resolve the matters raised by the proceedings.
1 Andrew Beck McGechan on Procedure (online looseleaf, Thomson Reuters) at [HR4.56.07].
2 Mainzeal Corporation Ltd v Contractors Bonding Ltd (1989) 2 PRNZ 47 (HC) at 50, citing
Gurtner v Circuit [1968] 2 QB 587 (CA) at 595.
3 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (JCPC) at 55 as cited in Beck, above n 1, at [HR4.56.09].
[16] I accept that there has been a delay by Mr Connal in making application (although that delay may be at least in part explained by the Christmas break and COVID-19 related issues). Delay however is not decisive – prejudice is more important.
[17] There is however no obvious prejudice to the plaintiffs in this case. Mr Connal is not seeking to vacate the fixture date if joined. His proposed statement of defence is in all essential respects the same as that previously advanced by his mother. He is not seeking further discovery and there is nothing to suggest that he wishes to take any other interlocutory steps that could delay matters. Rather, he simply wishes to be heard at the hearing that is already scheduled.
[18] Mr Fulton argued that the case the plaintiffs will have to advance will be different if Mr Connal is joined. That may be so but I am not persuaded by this argument. The plaintiffs were required to prepare for the hearing. Once the defendant withdrew her statement of defence, the plaintiffs no doubt anticipated that the matter would proceed by way of formal proof. They would nevertheless have to persuade the Court that the orders they seek are appropriate. That burden is on them, whether or not Mr Connal is joined as a party to the proceedings.
[19] Accordingly, I am satisfied that it is in the interests of justice that Mr Connal be added as a defendant to the proceedings and I so order. I direct that Mr Connal is to file and serve his statement of defence on or before 5.00 pm on Monday 14 March 2022.
Costs
[20] Mr Connal has obtained an indulgence from the Court. It is my preliminary view that a costs order in his favour is not appropriate, notwithstanding that he has been successful in his application.
[21]If counsel disagree, I direct as follows:
(a)any memorandum seeking costs is to be filed and served within five working days of the date of this judgment;
(b)any memorandum in response is to be filed and served within a further five working days;
(c)memoranda are not to exceed three pages.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.
Adjournment
[22] Regarding Mr Fulton’s request for an adjournment of the substantive fixture, Mr Conder, for Mr Connal, has confirmed that his client does not oppose the request. Nor does Ms Turei. She is no longer taking an active part in the proceedings and she abides the decision of the Court.
[23] I am satisfied that it is appropriate to vacate the fixture for the reasons (personal) advanced by Mr Fulton. The Registrar is to convene a telephone conference before the Duty Judge in six weeks’ time to timetable the matter through to a new hearing date.
Wylie J
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