Lupton v Hooper HC Wanganui CIV-2011-483-232

[2011] NZHC 1971

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2011-483-232

BETWEEN  WARWICK ISAAC LUPTON AND ANTONY EDWARD SYMES AND RUTH JENNIFER LUPTON AS TRUSTEES OF THE LUPTON TRUST

Plaintiffs

ANDGILLIAN MARGARET HOOPER AND MURRAY ROY HUGHES AS EXECUTORS AND TRUSTEES OF THE ESTATE OF ANNE MACDONALD LUPTON

Defendants

Hearing:         7 December 2011 (Heard at Wanganui)

Counsel:         C.P. Brosnahan - Counsel for Plaintiffs

G.A. Paine - Counsel for Defendants

Judgment:      8 December 2011 at 3:30 PM

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered on 8 December 2011 at

3.30 pm under r 11.5 of the High Court Rules.

Solicitors:           Roger Crowley, Solicitors, PO Box 744, Wanganui

Stephen Ross & Associates, Solicitors, PO Box 680, Wanganui

WI LUPTON AND AE SYMES AND RJ LUPTON AS TRUSTEES OF THE LUPTON TRUST V GM HOOPER AND MR HUGHES AS EXECUTORS AND TRUSTEES OF THE ESTATE OF ANNE MACDONALD LUPTON HC WANG CIV-2011-483-232 8 December 2011

Introduction

[1]      Before the Court is an application for summary judgment by the plaintiffs seeking an order for payment from the defendants of the sum of $13,569.46 being repayment of a loan said to be made to them by the plaintiffs.

[2]      The plaintiffs are the trustees of the Lupton Trust, a Trust established on 10

October 2002 I understand for the family of Mr Warwick Isaac Lupton (Mr Warwick Lupton).  The defendants are the executors and trustees of the will of the late Anne MacDonald Lupton (the deceased) who died on 27 December 2008.  The deceased is the mother of Mr Warwick Lupton, the first-named defendant (Ms Gillian Hooper) and her sister.

[3]      The $13,569.46 in question here is said by the plaintiffs to be an outstanding loan made to the defendants which has not been repaid despite numerous demands. They state that it represents certain accounts outstanding by the Anne MacDonald Lupton estate (the estate) (including the funeral account totalling $9,854.85) paid by the Lupton Trust effectively as an advance to the estate.

[4]      Effectively the defendants advance three defences to this simple loan debt claim which are:

(a)      The  defendants  have  issued  proceedings  in  the  Disputes  Tribunal against the first-named plaintiff Mr Warwick Lupton personally to recover an amount of $14,999.00 said to be due from him to the estate.     The  defendants  say  this  is  a  sum  allegedly  removed unlawfully from the account of the deceased to pay Mr Warwick Lupton’s lawyer’s fees.  The defendants maintain therefore that they have a counter-claim exceeding the amount claimed by the plaintiffs here.

(b)The claim that the plaintiffs advanced the $13,569.46 by way of loan to the estate is disputed as it is said an agreement had been reached

with Mr Warwick Lupton that he would be responsible for these estate debts and he would therefore effectively gift to the estate the amounts required to repay them.

(c)       In any event, Mr Warwick Lupton has agreed to meet one-half of the estate expenses which would include one-half of this $13,569.46.

Summary Judgment Principles and My Decision

[5]      As I have noted, the application before me is one for summary judgment.  It is brought pursuant to r 12.2(1) of the High Court Rules which provides:

12.2     Judgment when there is no defence or when no cause of action can succeed

(1)       The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[6]      The principles of summary judgment have been summarised recently by the Court of Appeal in Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26]:

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNZ 183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR 373 (PC), at p 341; p 381. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

[7]      At the outset I need to comment first, that it does seem strange here that the present claim which is only for some $13,569.46 has been brought in the High Court. The amount in question is within the jurisdiction of both the District Court and indeed the Disputes Tribunal.

[8]      Secondly, the claim for repayment of this amount is part of what appears to be an acrimonious and ongoing series of disputes between Mr Warwick Lupton and his sisters, all of whom finally have benefited from the estate following the death of their late mother.  It goes without saying that all matters of dispute must be drawn to a close at some point and hopefully sooner rather than later for the benefit of all members of the family.   Matters between these siblings regarding the estate must finally be laid to rest, given particularly that their mother the deceased died nearly three years ago.

[9]      Notwithstanding these remarks, the present summary judgment brought by the plaintiffs is before the Court and it requires a decision.  I now give that decision.

[10]     Addressing the application itself, I say at the outset that the evidence before this Court without question supports the plaintiffs’ contention that this $13,569.46 was a loan to the estate from the Lupton Trust and it has not been gifted or forgiven. I reach this conclusion for several reasons.

[11]     First, the executors and trustees of the estate who include Ms Gillian Hooper, one of the sisters of Mr Warwick Lupton, swore an affidavit dated 30 November

2009 setting out a Schedule of Assets and Liabilities of the estate.   This schedule clearly showed the $13,569.46 in question here as a liability of the estate.   It was specifically described as a loan from the Lupton Trust.

[12]     Secondly, Mr Warwick Lupton at para [5] of his 27 September 2011 affidavit describes discussions he had with his sister Ms Gillian Hooper soon after their late mother’s death.  In doing so he deposes:

I did, however, say that the Lupton Trust would pay for the funeral in the first instance but on the understanding that Gillian and Nicola would not dispute my mother’s estate.  I made it clear that if they did the Lupton Trust would expect to be reimbursed.  I discussed the same point with Gillian’s co-executor, Murray Hughes, and he told me to have an account with the funeral costs rendered to the estate which is what occurred to protect the Trust’s position.   In hindsight, it seems he was already aware that Gillian and Nicola intended to dispute my mother’s estate which is what occurred.

[13]     There have already been two High Court cases and one Family Court case involving the estate and the dispute between these siblings.  In other proceedings in

an affidavit sworn 24 August 2009 in support of her family protection claim against the estate, Ms Gillian Hooper at para 37 specifically discussed the funeral expenses and the accounts incurred by her late mother prior to her death.   In doing so she stated:

37.       When mum died there was approximately $2,800.00 in her account.  I was concerned that no money had been put aside to cover her funeral and estate expenses.  My sister and I voiced our concerns with Warwick when we met at the funeral home to arrange mum’s funeral.  During the course of this discussion Warwick gave an undertaking to pay these expenses. As agreed I  forwarded the funeral expenses and accounts incurred prior to mum’s death to Warwick for payment.  While he has paid these expenses I now understand from the other trustee that they have been paid as an advance to mum’s estate.  The trustees have sold the car and will have to sell the truck and a few shares she held to ensure we have enough funds to repay the advance from Warwick and to cover other residual estate expenses not yet known.

[14]     In  light  of  this,  in  my  view  it  is  quite  disingenuous  on  the  part  of  the defendants  to  contend  now  that  this  $13,569.46  which  Ms  Gillian  Hooper, specifically in her affidavit, noted in the previous paragraph was a loan to the estate to be repaid from the sale of the car and other items might now be said to be not a loan at all or a loan which was gifted.  No evidence of any subsequent action on the part of the plaintiffs or indeed Mr Warwick Lupton to gift this amount is before the Court.  Indeed the opposite appears to be the case.  Throughout, the plaintiffs have sought repayment of this loan from the estate.

[15]     I conclude that there is nothing in the suggested defence advanced by the defendants that the $13,569.46 is anything other than a loan from the Lupton Trust. It has not been gifted and remains repayable.

[16] As to the next defence advanced by the defendants (noted at [4](a) above)

that they have a counter-claim from separate Disputes Tribunal proceedings seeking

$14,999.00 from the first-named plaintiff Mr Warwick Lupton, this defence is also quickly disposed of.  Even if that Disputes Tribunal claim is to succeed, it will create a debt due to the estate from Mr Warwick Lupton personally and not from the Lupton Trust.  Any suggestion of a counter-claim or set-off against the Lupton Trust therefore misses the mark somewhat.  The debt owing by the estate to the Lupton Trust will remain, even if it may turn out that Mr Warwick Lupton personally is

found to owe monies to the estate.  These of course can be pursued in separate action against Mr Warwick Lupton, but not against the Lupton Trust.  There is nothing in this second defence advanced for the defendants.

[17]     The final defence advanced here is that in any event the first-named plaintiff, Mr Warwick Lupton, has agreed to meet one-half of the estate expenses.  Before me, counsel for the Lupton Trust indicated that Mr Warwick Lupton disputes that this is the case.  He contended that the basis for this claim, which relates to a provision in an earlier Deed of Family Arrangement entered into between the parties, has been misinterpreted by the defendants.   Notwithstanding this, it will of course be immediately apparent that even if the defendants may be right in their contention here, a requirement for Mr Warwick Lupton personally to meet one-half of the estate expenses does not in any way impinge upon the right of the Lupton Trust to be repaid this loan, a loan advanced by the Trust itself.

[18]     Again there is nothing in this defence advanced for the defendant.

[19]     I conclude that, on all the material before the Court, there can be no doubt in my mind that the $13,569.46 in question was a loan from the Lupton Trust to the estate, a loan which the defendants have clearly acknowledged, and despite discussions between the parties it was never gifted.  Therefore, the loan must remain outstanding.

[20]     For all these reasons, I am satisfied that the plaintiffs have done sufficient here to show that the defendants have no defence to the claim before the Court and that an order by way of summary judgment should follow.

Conclusion

[21]     The plaintiffs’ summary judgment application succeeds.

[22]     An order is now made by way of summary judgment that the defendants are to pay to the plaintiffs the sum of $13,569.46, but a further order is made that this

payment is not required to be made until thirty (30) working days from the date of this judgment.

[23]     This is to allow time for the estate, which it is acknowledged has no further funds, to endeavour to make arrangements to meet this judgment.  This will include it is hoped, some finality in the estate’s Disputes Tribunal claim against Mr Warwick Lupton for the monies which it is alleged he has wrongfully removed from the estate at an earlier time.

Costs

[24]     As to costs on the present application, as I have noted above the present proceedings in my view should not have been brought in the High Court.  In addition these proceedings appears to be yet one further step in the bitter and acrimonious series of disputes which have arisen between Mr Warwick Lupton and his sisters over their late mother’s estate. As I have noted above those matters must be brought to an end at some point.

[25]     For all these reasons, this is an appropriate matter as I see it for costs to lie where they fall. There is to be no order made as to costs on this application.

‘Associate Judge D.I. Gendall’