Mackintosh v Thomas - [2015] NZHC 2317

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-000754 [2015] NZHC 2317

BETWEEN
J B MACKINTOSH AND M C HALL

First Plaintiffs and Counterclaim
Defendants

AND

M W REED Second Plaintiff

AND

S T REED Third Plaintiff

AND

P D THOMAS
First Defendant and Counterclaimant

AND

E M MARR Second Defendant

AND

A M SYME Third Defendant

Hearing: 14 September 2015

Appearances:

N A Till QC and S Mann for Applicant (Second Plaintiff) K W Clay for Applicant (Third Plaintiff)

J W A Johnson and H T Shaw for Respondents (First
Defendant)

(Attendances of counsel for other parties and beneficiaries excused)

Judgment:

23 September 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE AS TO PARTICULAR DISCOVERY

J B MACKINTOSH AND M C HALL v M W REED [2015] NZHC 2317 [23 September 2015]

[1] Until now the parties to this litigation have through their required co- operation satisfactorily advanced through the discovery and inspection process without the need for Court orders. 1

[2] This judgment deals with a small number of discovery issues which the parties have been unable to resolve.

The proceedings

[3] The proceedings concern the extended family of the late Norman Thomas. The existence of the various (consolidated) proceedings reflects the degree of estrangement and competing interests which arise between the family members. I shall refer to the various people, after first identifying them, by their first names.

[4] In his lifetime, Norman became a farmer in a substantial way on the outskirts of Christchurch.

[5] Amongst his interests, Norman owned in his own right two rural blocks involved in this litigation, which I will refer to as “Chesmars” and “Yaldhurst”.

[6] Norman had three children, namely Philip Thomas, Eleanor Marr and Alison

Syme.

[7] Norman farmed in partnership with Philip from the 1970s (a partnership known as “NT Farming”) and co-owned with Philip a number of blocks initially as joint tenants but now as tenants-in-common in equal shares.2 Two of these blocks, I will refer to as “Cridges” and “Halkett”.

[8] Two of Norman’s grandchildren, namely Mark Reed and Simon Reed (the sons of Alison Syme) were involved in farming work on properties owned by Norman either fully or with a part-interest. Mark was involved on Yaldhurst and
Halkett. Simon was involved on Chesmars and Cridges.

1 High Court Rules, r 8.2(1).
2 The severance of the joint tenancies is discussed in a judgment of this Court: see Thomas v Thomas HC Christchurch CIV-2011-409-2514, 14 December 2011; the judgment being subject to further orders in Thomas v Thomas HC Christchurch CIV-2011-409-2514, 19 December 2011.

[9] Some of the matters which follow are set out in the judgment of Dunningham J in Mackintosh v Thomas, in which the Court made interim orders.3 By those orders Mark has remained in possession of Halkett and Simon has remained in possession of Cridges.

[10] In 2010, Norman and Philip fell out. Norman gave a notice of dissolution of the NT Farming partnership resulting in its dissolution as at 3 March…

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 Mackintosh v Thomas

Details

AGLC: Mackintosh v Thomas [2015] NZHC 2317
Case: [2015] NZHC 2317
Decision Date: 23 September 2015

CaseChat Overview and Summary

The parties to the case are Mark Reed, Simon Reed, Philip Thomas, Eleanor Marr, and Alison Syme. The dispute revolves around the estate of Norman Thomas, who owned several properties and had a farming partnership with Philip Thomas. The case concerns claims by Mark and Simon, the sons of Alison Syme, regarding testamentary promises, promissory estoppel, unjust enrichment, and restitution. The court was required to decide on various discovery issues, including the relevance and proportionality of financial documents and business records related to the claims. The court found that some of the requested documents were not properly sought under the discovery rules and dismissed those aspects of the application. The court also found that certain financial records of Mark and Simon were relevant to the issues in the proceeding and ordered their discovery. The court considered the interests of justice, proportionality, and the specific examples of expenses identified by the applicant, concluding that the discovery of financial records relating to fuel and fertiliser was proportionate and necessary. The court also ordered the disclosure of Mark's recent and current income and expenditure figures, as they were relevant to the opportunity he forewent. The court dismissed the application for discovery of Simon's income-related documents, as they were not relevant to his claim. The court also ordered the disclosure of the balance sheet positions of Mark and Simon, as they were relevant to the family protection claims. The court made orders for the parties to file affidavits and disclose specific financial documents within 10 working days. The court also reserved costs and directed the parties to submit if they were unable to resolve the costs in the light of the judgment.

Orders