MacKenzie v MacKenzie - [2017] NZHC 2893

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-419-415 [2017] NZHC 2893

BETWEEN
MALCOLM OWEN MACKENZIE

Plaintiff

AND

MALCOLM OWEN MACKENZIE IAN SCOTT MACKENZIE BARRY ANDREW MACKENZIE MARION ANNE LINES AS

EXECUTORS AND EXECUTRIX OF THE WILL OF DONALD MALCOLM MACKENZIE

Defendants

Hearing: 2 October 2017

Appearances:

R O Parmenter for the Plaintiff
P J Wright for the Defendants

Judgment:

23 November 2017

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 23 November 2017 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules
………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Daniel Overton & Goulding, Auckland, for the Plaintiff Sellar Bone (Colin Lucas), Auckland, for the Defendants Copy for:
R O Parmenter, Auckland, for the Plaintiff
PJ Wright/Stephen Laing, Auckland, for the Defendants

MACKENZIE v MACKENZIE [2017] NZHC 2893 [23 November 2017]

[1] Each side applies under r 8.19 of the High Court Rules for further discovery. After the hearing, the plaintiff filed a supplementary affidavit of documents on 31
October 2017. That reduced the matters to be decided on the defendants’

application.

What the case is about

[2] The plaintiff claims under the Law Reform (Testamentary Promises) Act

1949. He and the defendants are the children of the late Donald Malcolm Mackenzie who died on 27 December 2013. They are the executors of his estate. They are also the trustees of the Pencarrow Trust, a trust 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 the defendants equally. The defendants say that at the date of their father’s death, the plaintiff owed him over $526,000. Under the will the father forgave that debt. In August 2016 the plaintiff received a distribution of approximately $935,000 from the Pencarrow Trust.

[3] The plaintiff’s case is that in 1981 he was pressed by creditors. He owned a property at Pencarrow Road, Tamahere divided into two lots. He agreed to sell the property to his father. While the father would have legal title, the plaintiff 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 father would return the Tamahere to the plaintiff in his will. This is described as a “warehousing” arrangement.

[4] The plaintiff and the father made an agreement for sale and purchase dated

15 November 1981 under which the plaintiff sold the property to the father for

$235,000. Under a deed of variation of the agreement and acknowledgment of debt dated 10 August 1982 the father acknowledged that the unpaid balance of the

purchase price was $142,905. The father would pay interest on that sum at 11.5% per annum upon demand by the plaintiff. The plaintiff continued to live in the…

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 [2017] NZHC 2893
Case: [2017] NZHC 2893
Decision Date: 23 November 2017

CaseChat Overview and Summary

The case of MacKenzie v MacKenzie involved a dispute between the plaintiff, Malcolm Owen MacKenzie, and the defendants, who were the executors and executrix of the will of Donald Malcolm MacKenzie, the plaintiff’s father. The plaintiff claimed under the Law Reform (Testamentary Promises) Act 1949, alleging that his father had promised him compensation in his will for not receiving a property that the father had purchased from the plaintiff. The defendants disputed this and sought further discovery of documents related to the estate and trust accounts, among other things. The plaintiff, in turn, sought similar discovery against the defendants, arguing that any inter vivos benefits he received from his father should be balanced against any benefits his siblings received.

The court had to decide whether the defendants were entitled to further discovery of documents as executors and trustees, and whether the plaintiff was entitled to similar discovery as a means of assessing the extent of any testamentary promise his father made to him. The court found that the defendants were entitled to certain documents as of right, while others could only be ordered for procedural discovery. The plaintiff had not disclosed all relevant documents initially but did so after the hearing. The court also found that the plaintiff’s request for discovery from his siblings was disproportionate and should be considered after the exchange of evidence.

The court ordered costs in favour of the defendants on their application and reserved costs on the plaintiff’s application. It provided detailed case management directions, including deadlines for the exchange of evidence, documents, and chronologies, and scheduled a hearing for six days starting 23 July 2018. The court deferred a decision on the plaintiff’s discovery application against his siblings until after the exchange of evidence to allow a more focused consideration of the issue.

Orders