Mason v Dodd - [2024] NZHC 219

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000936

[2024] NZHC 219

BETWEEN
ALEXANDER CHARLES MASON

Plaintiff

AND

PAUL MORLEY DODD

Defendant

Hearing: 15 February 2024

Appearances:

G J Thwaite for Plaintiff

M C Harris and S T Coupe for Defendant

Judgment:

19 February 2024

JUDGMENT OF VAN BOHEMEN J

[Reasons for dismissing application for adjournment of trial]

This judgment was delivered by me on 19 February 2024 at 3:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:
G J Thwaite, Auckland M C Harris, Auckland Gilbert Walker, Auckland

MASON v DODD [2024] NZHC 219 [19 February 2024]

[1] Following the death of his wife on 26 January 2024, Mr Mason, the plaintiff, applies for the adjournment of a five-day hearing set down to commence on 4 March 2024. The hearing is of claims in contract and tort against Mr Dodd, Mr Mason’s former accountant, relating to the formation of two family trusts established in 1994 and 2013. Mr Dodd opposes the adjournment.

[2] The application was heard before me on 15 February 2024. At the conclusion of the hearing, I dismissed the application and said I would issue my reasons by 19 February 2024.

Nature of proceeding

[3] Mr Mason says Mr Dodd gave him incorrect advice in 1994 about setting up a first family trust, the Mamari Trust (Mamari 1), and transferring his assets to it. He also says Mr Dodd gave further incorrect advice or failed to correct his earlier advice when a second trust, the Mamari (No 2) Trust (Mamari 2) was established in 2013.

[4] The damages sought have yet to be quantified but, in the memorandum of Mr Thwaite, counsel for Mr Mason, in which adjournment is sought, it is stated that Mr Mason is seeking half the value of the assets of the two trusts and that those assets principally comprise the matrimonial home in which Mr Mason has been residing, a factory and cash of about $3,400,000.

[5] Mr Dodd denies any breach of contract or any breach of his duties to Mr Mason. He acknowledges advising on the formation of Mamari 1 in 1994 but says the family solicitor advised on Mamari 2.

Relevant factual background

[6] The proceeding concerns one of a series of disputes between Mr Mason on the one hand and Mr Dodd, Mr Mason’s daughters and many other persons who had responsibility for the care of Mr Mason’s wife, Wendy Mason, on the other hand, on the appropriate arrangements for the care of Mrs Mason after she was diagnosed with dementia in 2012. Those disputes have been the subject of various proceedings in the Family Court, the High Court and the Court of Appeal.

[7] While Mr Mason’s affidavit sworn in support of this application recounts his view of events, I base the following account on consistent findings of the Family Court, this Court and the Court of Appeal.

[8]…

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 Mason v Dodd

Details

AGLC: Mason v Dodd [2024] NZHC 219
Case: [2024] NZHC 219
Decision Date: 19 February 2024

CaseChat Overview and Summary

Alexander Charles Mason brought a claim against Paul Morley Dodd, his former accountant, alleging breaches of contract and tort in relation to the formation of two family trusts established in 1994 and 2013. Following the death of his wife, Mrs Mason, Mr Mason applied to adjourn the five-day hearing set to commence on 4 March 2024, which Mr Dodd opposed. The application was heard on 15 February 2024 and was dismissed on 19 February 2024. The judge dismissed the application on the basis that the death of Mrs Mason was not a sufficient reason to adjourn the trial, the events on which Mr Mason's claim was based were already very stale, and Mr Mason's desire to commence more proceedings could not justify vacating the trial. The judge also found that Mr Mason was not unable to prepare for the hearing, and that his wish to put the current proceeding on hold while he pursued three new proceedings was one of the worst reasons that could be advanced to support an adjournment. The judge confirmed that the hearing set down to commence on 4 March 2024 will proceed. Mr Dodd is entitled to costs on the hearing on a 2B basis, to be fixed by the Registrar, with any disputed issues referred to the judge.

Orders