MacKenzie v MacKenzie - [2018] NZHC 1744

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-419-000415

[2018] NZHC 1744

BETWEEN
MALCOLM OWEN MACKENZIE

Plaintiff

AND

MALCOLM OWEN MACKENZIE, IAN SCOTT MACKENZIE, BARRY ANDREW MACKENZIE and MARION ANNE LINES

as executors of the last will of Donald Malcolm MacKenzie

Defendants

Hearing: 13 July 2018

Appearances:

Ray Parmenter for the Plaintiff Peter Wright for the Defendants

Judgment:

16 July 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 16 July 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

MACKENZIE v MACKENZIE & ORS [2018] NZHC 1744 [16 July 2018]

Introduction

[1] The six day trial for these proceedings is scheduled to commence on 23 July 2018.

[2] The plaintiff has issued subpoenas requiring each of the second, third and fourth defendants (“the defendants”) to attend the trial to give evidence and to produce certain documents.

[3] Pre-trial, the defendants apply to set aside the subpoenas on the grounds they amount to an abuse of process. The plaintiff opposes the application.

Respective factual claims

[4] The background to these proceedings is fully set out in Associate Judge Bell judgment of 23 November 2017.1 The following narrative is drawn from that decision.

[5] The plaintiff, Malcolm Owen MacKenzie, brings his claim under the Law Reform (Testamentary Promises) Act 1949 (“the Act”). He and the defendants are the children of the late Donald MacKenzie (“the father”) who died on 27 December 2013. They are the executors of his estate and are also trustees of the Pencarrow Trust (“the Trust”) which was established by their father under a deed dated 29 July 1980. The father’s estate is said to be worth $900,000. After bequests to grandchildren and extended family the will left the residue to the plaintiff and defendants equally.

[6] The plaintiff’s case is that in 1981 he was pressed by creditors. He owned a property at Pencarrow Road, Tamahere (“the Tamahere property”) which was divided into two lots. He agreed to sell the property to his father. While the father would have legal title, his son would continue to treat the property as his own, live on it and meet all the outgoings. He would not require his father to pay any money owing under the agreement for sale and purchase. The agreement was that the father would return the Tamahere property to the plaintiff in his will. Associate Judge Bell described this as the “warehousing” arrangement.

1 MacKenzie v MacKenzie [2017] NZHC 2893.

[7] The plaintiff and his father executed an agreement for sale and purchase on 15 November 1981 under which the former sold the property to his father for
$235,000. In 1982, under a deed of variation and acknowledgment of debt, the father acknowledged that the unpaid balance of the purchase price was $142,905. The father would pay interest on that sum upon demand by his son. The plaintiff continued to live in the property…

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 MacKenzie v MacKenzie

Details

AGLC: MacKenzie v MacKenzie [2018] NZHC 1744
Case: [2018] NZHC 1744
Decision Date: 16 July 2018

CaseChat Overview and Summary

MacKenzie v MacKenzie concerns a dispute over the estate of Donald Malcolm MacKenzie, who died in 2013. His son, Malcolm Owen MacKenzie, the plaintiff, claims that his father made a testamentary promise to return to him a property that he had sold to his father in 1981. The defendants, the other children of Donald MacKenzie, dispute this claim and have applied to set aside subpoenas issued by the plaintiff requiring them to attend the trial and produce certain documents. The central legal issue before the court was whether the subpoenas should be set aside on the grounds that they constitute an abuse of process. The court had to consider whether the subpoenas were oppressive, issued for an improper purpose, or whether they sought irrelevant documents. The court found that the subpoenas were oppressive and an abuse of process. Firstly, concerning Ian MacKenzie, the court found that requiring him to give evidence would be oppressive due to his serious medical condition. For the other defendants, the court held that the documents sought were not relevant to the issues in dispute and that issuing the subpoenas amounted to a collateral attack on a previous decision of the court. Furthermore, the plaintiff failed to follow the procedural requirements for calling a witness without a brief of evidence. Given these findings, the court set aside the subpoenas, holding that at best marginally relevant admissible evidence could be given in answer to the summonses. The defendants were awarded costs on a 2B basis.

Orders