Mason v Dodd
[2024] NZHC 219
•19 February 2024
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] Mr Mason is 88 years old. He and Mrs Mason were married in November 1956. They had three children, Vicki Triezenberg, Michelle Richardson and Mark Mason.
[9] The Court of Appeal summarised the factual background to the establishment and administration of the trusts as follows:1
[7] Mr and Mrs Mason built up substantial personal assets through a family construction business that they operated for many years. In early 1994, they instructed Mr Dodd to form a family trust for their assets. Mamari 1 was duly settled by a deed dated 26 April 1994. Mr and Mrs Mason were the settlors and the trustees. They were also the beneficiaries along with their three children, their grandchildren, their parents and any future spouse. The trust's assets were the family home, a commercial business, and cash holdings.
[8] The Masons sold the family business in 1997 and retired. In 2002, they purchased a property in Australia and thereafter divided their time between New Zealand and Australia. When they were in Australia, Ms Triezenberg attended to day-to-day and financial matters on their behalf.
[9] Mrs Mason was diagnosed with early stage degenerative dementia in 2012. This led to a meeting on 14 March 2013 with Mr Jorgenson, the family's solicitor for about 55 years, attended by Mr and Mrs Mason and Ms Triezenberg. Mr and Mrs Mason each appointed Ms Triezenberg as their attorney in respect of property affairs and personal care and welfare. Ms Richardson was appointed as successor attorney.
[10] The meeting also discussed the settling of a further trust. Mr Jorgenson sent Mr Mason a draft deed of trust. A finalised deed was signed on 20 May 2013 (Mamari 2). The settlors were Mr and Mrs Mason. The trustees were Mr and Mrs Mason, Ms Triezenberg and Mr Dodd. The beneficiaries were Mr and Mrs Mason, their three children, and their grandchildren.
[11] On 29 May 2013 Mr and Mrs Mason forgave debts owing to them by Mamari 1 of $1,853,665 and on 30 May 2013 they resettled $3.3 million of term deposits from that trust to Mamari 2. Following this transfer, the main assets of Mamari 1 were their Auckland family home in which Mr Mason still lives (the 2017 QV was $1,540,000) and a commercial property (the 2017 QV was $1,000,000).
[12] Mrs Mason also made a new will on 30 May 2013. Ms Triezenberg and Mr Dodd were appointed as executors and trustees of her estate. She
1 Mason v Triezenberg [2022] NZCA 138.
bequeathed chattels and her interest in the Australian property to Mr Mason and left the residue to Mamari 2.
[13] Mr and Mrs Mason also signed a Memorandum of Guidance stated to be in relation to Mamari 1 but accepted by the High Court as intended to relate to both trusts. It stated:
“The first responsibility of the Trustees shall be to consider on a regular basis the circumstances of each of [Mr and Mrs Mason] while they are respectively living … so that the comfort and welfare of each of [them] while they or either of them are respectively living is the primary consideration of the trustees.
When [Mr and Mrs Mason] have both died then unless there is good reason to the contrary existing at that time, we request that the Trust be wound up and the assets distributed equally between our three children.”
[14] Ms Triezenberg and Mr Dodd were appointed as additional trustees of Mamari 1 on 31 May 2013. Also on that day, Mrs Mason appointed Ms Triezenberg and Mr Mason appointed Mr Dodd as their respective attorneys on both trusts.
[15] Mrs Mason's dementia worsened. In October 2013 Ms Triezenberg resigned from her full-time work to care for Mrs Mason two days a week. By mid-2014, part-time carers were employed so that, between them and Ms Triezenberg, Mrs Mason had in-home care three days a week. This care was paid for by monthly distributions of $2,000 from Mamari 2. By early January 2015, a third part-time carer was employed and the trust distributions increased to $4,000 per month.
[16] By 12 July 2015, Mrs Mason’s dementia had worsened to the extent that she was referred to Mental Health Services for Older People for urgent review. On 10 August 2015 Mrs Mason was referred to Middlemore Hospital for assessment and respite care. This was with the agreement of all three children. It was also with Mr Mason's reluctant agreement and on the understanding that it would be for a few weeks only.
[17] Mrs Mason was certified mentally incapable due to her dementia on the day of her admission to Middlemore Hospital. This activated Ms Triezenberg’s power of attorney. Not long after this, the clinical team recommended to the family that Mrs Mason be admitted to residential care specialising in dementia. Ms Triezenberg accepted that advice and was supported in her decision by her siblings. Mrs Mason was discharged from Middlemore Hospital on 1 September 2015 and transferred to St Andrew’s Village in accordance with that decision.
[18] Mr Mason was vehemently opposed to this and very upset about it. He wanted her to return home. He posted a “mock” death notice for her at the hospital and sent a copy to each of his children. In the following months he wrote many letters to Ms Triezenberg and Mr Dodd (and to others). Some of these were threatening and insulting. He also applied to the Family Court for orders revoking Ms Triezenberg’s power of attorney and that he be appointed as Mrs Mason's welfare guardian. Ms Triezenberg issued trespass notices against Mr Mason and also made complaints to the police.
[19] Issues arose in the administration of the trust. Mr Mason disagreed with the recommendation of an investment advisor for a diversified investment strategy accepted by Ms Triezenberg and Mr Dodd. Although the bank mandate for Mamari 2 required two trustee signatures for withdrawals, Mr Mason notified the bank in July 2016 that going forwards no withdrawals were to be made without the unanimous approval of all trustees. And although the trustees of Mamari 2 passed several resolutions for the smooth running of matters including for the payment of Mrs Mason's care, Mr Mason later refused to pay invoices for MEDACS nursing care at St Andrew's viewing their services as “totally unnecessary and at an incredible cost”. Ms Triezenberg was able to put aside funds for the payment of Mrs Mason’s care by withdrawing funds from Mrs Mason's personal bank account.
[20] Mr Mason was also causing difficulties for the staff at St Andrew’s. Following a letter from the solicitors for St Andrew's in April 2016 and a “final warning” given to Mr Mason by St Andrew's for his aggressive and rude behaviour, on 2 September 2016 it advised that it would be terminating Mrs Mason's care effective as of 2 November 2016.
[21] With the pending termination of Mrs Mason's care at St Andrew’s and the upcoming hearing on Mr Mason's Family Court application to revoke Ms Triezenberg's enduring power of attorney, a family mediation was held on 22 and 23 September 2016. A settlement agreement was reached.
[22] As part of this settlement it was agreed that Mrs Mason would be transferred home with 24/7 care to be provided by an external nursing agency and the costs of this met by Mamari 2. Dr Casey (an experienced psychiatrist and psychogeriatric consultant) would conduct monthly assessments of Mr and Mrs Mason. In accordance with this, Mrs Mason was transferred from St Andrew's to her home on 20 October 2016.
[23] It was also agreed that Ms Triezenberg’s power of attorney was to be terminated and a Mr Allen appointed in her place with his fees met by Mamari 2. Interim orders were obtained from the Family Court implementing this aspect of the settlement and Mr Allen arranged in-home care for Mrs Mason.
[24] It was also part of the settlement that an independent company (SurePlan) would make recommendations as to the management of the trusts and all trustees would stand down and be replaced by professional trustees (to be agreed by the trustees). Some steps were taken towards this but they were not progressed when Mr Mason objected to the trustee proposed by Ms Triezenberg and Mr Dodd as being too expensive. SurePlan also made its recommendations about the assets of the two trusts.
[25] Mrs Mason's general condition improved on her return home with the 24/7 in-home care. However, Mr Mason refused to approve invoices for Mrs Mason’s in-home care which meant that Mamari 2 was constantly in default. He also refused to pay all of Mr Allen's, Mr Dodd’s and Dr Casey’s fees. Mrs Mason's personal funds were used pending reimbursement from Mamari
2. Ms Triezenberg and Mr Dodd formed the view that it was necessary for Mr Mason to be removed as trustee. Mr Allen agreed that this would be in Mrs Mason's best interests.
[26] Mr Mason’s conduct (in relation to the payment of invoices, his attitude to and criticism of the carers and others, and his refusal to pay for things such as a haircut for Mrs Mason) led to the home care provider advising they would withdraw their services on 24 May 2017. Ms Triezenberg and Mr Dodd endeavoured to have Mr Mason agree to resolutions to regularise payments but he did not respond to the proposal. Mr Allen arranged replacement care but difficulties continued with unpaid invoices. In June 2017 Dr Casey withdrew from her role because of the discord within the family, advising the Family Court that this was the first time in her 30-year career that she had done so.
[10] In July 2017, Ms Triezenberg and Mr Dodd applied to remove Mr Mason as trustee of the two trusts and for directions. That application was heard in September 2018 by Fitzgerald J, who issued her judgment on 17 January 2019.2
[11] Fitzgerald J removed Mr Mason as trustee from both trusts.3 Fitzgerald J held that Mr Mason did not accept the very nature of the two trusts and considered that Mr Mason had displayed a lack of understanding of the role and duties of a trustee, including the duty to administer the trust assets for the benefit of all beneficiaries, and was not well-placed to adopt the flexibility needed to deal with changing markets, active management of assets, the changing needs and circumstances of beneficiaries and any changes to their co-trustees.4
[12] Fitzgerald J also held that there was no principled basis upon which to remove Ms Triezenberg and Mr Dodd as trustees. The Judge considered that, even if Ms Triezenberg and Mr Dodd were removed and a professional trustee appointed in their place, this would not solve or remove the issues which had presented in the trusts to date.5
[13] Mr Mason appealed Fitzgerald J’s decision to the Court of Appeal. He also commenced the current proceeding against Mr Dodd.
[14]On 27 April 2022, the Court of Appeal dismissed Mr Mason’s appeal.6
2 Triezenberg v Mason [2019] NZHC 14.
3 At [165].
4 At [125]–[128].
5 At [133]–[134].
6 Mason v Triezenberg, above n 1.
Relevant procedural history
[15] Mr Mason commenced this proceeding in May 2019. A statement of claim and an amended statement of claim were filed that month.
[16] In June 2020, Katz J dismissed Mr Mason’s application for summary judgment, holding that Mr Mason had failed by a very wide margin to establish that Mr Dodd had no reasonable ground of defence to any or all of the causes of action pleaded.7
[17] On 12 November 2020, Associate Judge Gardiner dismissed Mr Dodd’s application for an order that Mr Mason pay security for costs.8
[18] On 2 June 2022, Associate Judge Gardiner set down the proceeding for trial commencing on 4 March 2024.
[19] On 9 August 2022, Associate Judge Gardiner made timetable directions by consent.
[20] On 23 March 2023, Associate Judge Gardiner made revised timetable directions following non-compliance by Mr Mason with the earlier directions in relation to discovery and the filing of an amended statement of claim
[21]On 11 April 2023, Mr Mason filed a third (amended) statement of claim.
[22] On 16 November 2023, O’Gorman J made further revised timetable directions following non-compliance by Mr Mason with orders for the filing of briefs of evidence.
[23]On 24 November 2023, Mr Mason filed his brief of evidence.
[24] On 7 February 2024, Mr Mason applied for an adjournment by way of a memorandum from his counsel, Mr Thwaite.
7 Mason v Dodd [2020] NZHC 1508 at [45].
8 Mason v Dodd [2020] NZHC 2916.
Mr Mason’s grounds for adjournment
[25] Mr Thwaite says the basic reason for the application is the fundamental change in Mr Mason’s family circumstances following the death of Mrs Mason. Mr Thwaite says that Mrs Mason’s death has been a tremendous blow to Mr Mason who has just started the grieving process.
[26] Mr Thwaite says the rigours of participating in a trial, particularly of giving evidence, are likely to be “stressful beyond normal capacity”. He considers he would face great difficulty in preparing Mr Mason for cross-examination. Mr Thwaite also acknowledges that preparations for the hearing are not well advanced.
[27] Mr Thwaite also says Mr Mason’s capacity has been affected by the ageing process and that, although he can be involved in litigation, he would be disadvantaged at present and needs to husband his resources.
Mr Thwaite says Mrs Mason’s death has three important legal consequences:
(a)The trustees no longer have to meet Mrs Mason’s care costs and Mr Mason is, according to Mr Thwaite, “the sole primary beneficiary” under the Trusts. Mr Thwaite says the identity of the trustees and the future of the trusts needs to be reassessed.
(b)The validity of the last will made by Mrs Mason needs to be assessed.
(c)The jurisdiction of Mr Michael Allen, the Welfare Guardian and Property Manager appointed by the Family Court, has ended and, according to Mr Thwaite, the activity of Mr Allen needs to be objectively measured.
[29] Mr Thwaite says that Mr Mason is proposing to initiate three sets of legal proceedings “to achieve what should have been the proper position” for Mr and Mrs Mason:9
(a)the removal of Mr Dodd and Ms Triezenberg as trustees of the two trusts and the appointment of Mr Mason and a third party as trustees;
(b)an investigation into whether the orders of the Family Court regarding the making of a will by Mrs Mason were carried out and, if appropriate, into the validity of the will; and
(c)an investigation into the conduct of Mr Allen.
[30] Mr Thwaite says Mr Mason wishes to bring a conclusion to these disputes while his strength lasts. Mr Thwaite also acknowledges that there is a tactical dimension to the wish to pursue these matters before the current proceeding. That is, if Mr Mason is successful in regaining personal possession of half of the Trust’s assets, he considers that the case for removing the current trustees would not be as compelling.
[31] Mr Thwaite says Mr Mason’s request ought to be able to be accommodated without undue impact on the Court’s processes or on Mr Dodd. All that Mr Mason is seeking is an adjournment to a date later in the year so that Mr Mason can commence the other proceedings he wishes to bring. He says Mr Mason would be prepared to accept, as a condition of the adjournment, that he file the proceeding seeking the removal of the trustees by a set date. By that stage, Mr Mason may have concluded that he need not continue with the current proceeding. However, if he does decide to proceed, it would require only two days rather than the five days allocated next month.
[32] In his affidavit sworn in support of the application for adjournment, Mr Mason gives his version of events. He also says that he started this proceeding when he saw
9 Mr Thwaite says Mr Mason is also considering making a complaint to the United Nations — presumably the Human Rights Committee established under the International Covenant on Civil and Political Rights — for alleged breaches of the rights of Mr and Mrs Mason in relation to freedom of association, freedom of movement and the liberty of the person.
no other way to reclaim some of the assets that he and Mrs Mason had built up. However, he says that because he does not have the energy he used to have and because his time is running out, he wants to put the litigation against Mr Dodd to one side so he and Mr Thwaite can work to retrieve what is left of his assets.
Mr Dodd’s opposition
[33]In response, Mr Harris, counsel for Mr Dodd, says:
(a)While the passing of Mrs Mason is obviously a great loss to Mr Mason, it is not a sufficient reason to adjourn the trial.
(b)The events on which Mr Mason’s claim is based are already very stale.
(c)Mr Mason’s desire to commence more proceedings cannot justify vacating next month’s trial for what will be a lengthy and indefinite period, given that there could be no certainty when the other proceedings would be heard and determined.
(d)Mr Dodd wishes to have this proceeding resolved as soon as possible.
(e)Any delay in the trial would unfairly prejudice Mr Dodd and is not in the interests of justice.
Analysis
[34]Rule 10.2 of the High Court Rules 2016 provides:
The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.
[35] As stated by Isac J in two recent decisions, r 10.2 confers a broad discretion on the Court but the following principles inform its application:10
10 Huritu v Attorney-General [2022] NZHC 1500 at [16]; Poutama Kaitiaki Charitable Trust and Pascoe v Taranaki Regional Council [2022] NZHC 628 at [38]–[39].
(a)The interests of justice require consideration of not only the interests of the parties before the Court, but also of those awaiting a hearing who will suffer delay to their own cases should an adjournment be granted. This reflects the public interest in the efficient use of court resources.
(b)As between the parties, the decision to grant or decline an adjournment is essentially a balancing exercise. It involves a consideration of the prejudice that will accrue to the applicant as well as the harm to the respondent if an adjournment is granted or denied.
(c)A further relevant factor is whether the applicant has acted reasonably and done everything practical to avoid the need for an adjournment.
(d)The strength of the reasons in support of the application, and the prejudice said to follow from continuing with the trial, is a material factor.
(e)Also relevant is the right of the parties to a fair trial and the need for resolution of the proceedings, including the likely impact of further delay on the quality of the evidence and the difficulties of reorganising witnesses for a later trial date.
(footnotes omitted)
[36] As Mr Harris says, this proceeding was commenced over four years ago. The hearing date was set over 18 months ago. It involves serious allegations against Mr Dodd who, for over 20 years — from 1994 to 2015 — had a satisfactory relationship with Mr Mason. There can be little doubt that it has been unpleasant for Mr Dodd to have this proceeding hanging over him. I accept that it would be a very poor result for him if the hearing were adjourned just weeks before it was to take place.
[37] The effect on Mr Dodd would be compounded by the fact that there can be no certainty when the other proceedings that Mr Mason wants to bring will be heard and decided. Given that hearing dates have already been allocated in 2024 and early 2025 for non-urgent civil proceedings of more than two days, it is unlikely that any new proceeding would be heard before mid-2025 at the earliest. The same holds for the current proceeding if it is adjourned, even if it were to be set down for only two days. Given the adjournment sought, it is clearly not urgent and could not expect to be given any priority.
[38] These considerations, as well as the five days of court time that will probably be lost if the adjournment is granted,11 weigh strongly against granting the adjournment.
[39] The essential question, therefore, is whether the factors that Mr Mason advances are sufficiently compelling to outweigh the above considerations.
[40]It is apparent that they are not.
[41] While I accept that Mr Mason will have been very distressed by Mrs Mason’s death, I do not accept that, even at his advanced age, Mr Mason would not be able to prepare adequately for the hearing. Mrs Mason has been ill for a considerable period, and he has had a long time to prepare for that inevitable event. He has also had a long time to prepare for this hearing.
[42] I acknowledge Mr Mason’s dedication to his wife and the fact that her death will have created a very large hole in his life. However, Mr Mason has demonstrated over the long period of caring for his wife that he is a very determined man. He has had no difficulty in taking part in a large number of contentious proceedings, and in continuing to press his position even when he has been largely unsuccessful.12 Given that history and in the absence of any medical evidence, I am not prepared to accept that Mr Mason is unable to prepare for the hearing.
[43] Additional considerations that support that conclusion are the fact that Mr Mason has made the case against Mr Dodd regarding the formation of the trusts in a number of proceedings over a number of years. His position on the dispute must be well known to him. He has also filed his brief, so he has a ready reference when preparing for the hearing. Moreover, the grief that Mr Mason has experienced over Mrs Mason’s death did not prevent him swearing a lengthy affidavit in support of the
11 It is unlikely that another hearing or hearings could be brought on at short notice.
12 I note the efforts Mr Thwaite made to persuade me that Mr Mason has been vindicated by the fact he was able to care for Mrs Mason at home for a period, despite findings to the contrary, and, according to Mr Thwaite, by it becoming apparent that the trustees have not been complying with their obligations. I do not have any evidence on the first matter. I do not accept that the passages in Associate Judge Gardiner’s security for costs judgment to which Mr Thwaite referred are sufficient support for Mr Thwaite’s second proposition.
adjournment application or agreeing to the new litigation strategy that he now says he wants to pursue.
[44] As to the wish to put the current proceeding on hold while Mr Mason pursues three new proceedings, including one for the removal of Mr Dodd, that is, as Mr Harris observed, one of the worst reasons that could be advanced to support an adjournment. It suggests a cavalier regard for the Court schedule and the Court’s time, and the interests of other litigants whose proceedings will be affected by any adjournment granted to Mr Mason. The fact that Mr Mason sees a tactical advantage in seeking the removal of the trustees, which he considers more possible now that Mrs Mason has died, before advancing the current proceeding does not assist his case for adjournment.
Result
[45]For all these reasons, I dismiss Mr Mason’s application for an adjournment.
Costs
[46] 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 me.
The March hearing
[47] I confirm that the hearing set down to commence on 4 March 2024 will proceed.
[48] I have advised the Civil List Judge that both parties consider that the hearing is likely to take no more than two to three days. At this stage, he does not propose to allocate the other days.
G J van Bohemen J
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