Mauger v Tucker - [2021] NZHC 3214

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-226

[2021] NZHC 3214

BETWEEN
W J MAUGER (by his litigation guardian P J Cron)

Plaintiff

AND

S M TUCKER

First Defendant

L C HERMANSSON

Second Defendant

Hearing: 13 October 2021

Appearances:

N A Till QC for Plaintiff

K W Clay and R L D Paul for First Defendant T J Castle for Second Defendant

A N Riches for Executors of Estate of W J Mauger

Judgment:

29 November 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1]In January 2019, Mr Warner Mauger executed two deeds of gift, one for

$550,000 to the first defendant, Mr Simon Tucker, and one for $485,000 to the second defendant, Ms Louise Hermansson. Subsequently, both gifts were paid out. In May 2020 Mr Mauger, through his guardian ad litem or litigation guardian, his daughter, Ms Penelope Cron, commenced this proceeding which is directed at clawing back those gifts. In the original statement of claim, he pleaded one cause of action, that is to say that the transactions were unconscionable and should be set aside.

MAUGER v TUCKER [2021] NZHC 3214 [29 November 2021]

[2] In July 2020 both defendants entered defences. They say Mr Mauger had full capacity, that he was quite entitled to make the gifts, that it was his firm wish to make them and that they are unassailable.

[3] Mr Mauger died in November 2020. The executors of his estate, Mr Cranwell Bull (Mr Mauger’s solicitor) and Mr Wynton Cox, did not wish to pursue the claim. In April 2021, they assigned their interest in the claim to Mr Mauger’s children, Mr Philip Mauger, Mr Timothy Mauger, Mr Stephen Mauger and Ms Cron. The children are the principal beneficiaries of Mr Mauger’s estate, and referred to herein as the applicants in relation to the first application identified below.

[4] Before the Court for immediate determination are three interlocutory applications:

(a)by the applicants for an order substituting themselves for their late father as the plaintiffs in the proceeding;

(b)by the first defendant for an order striking out the claim; and

(c)by the second defendant for an order striking out the claim.

The factual background

[5] Before turning to those applications, it is necessary to flesh out the factual background to the proceeding.

[6] In relation to this there is no shortage of affidavit evidence. On my count, there are at least 14 affidavits before the Court in relation to these three interlocutory applications. They occupy the lion’s share of three substantial volumes of material. In a synopsis of submissions dated 8 July 2021 filed and served by the applicants’ solicitors prior to Mr Till being instructed, and in anticipation of their interlocutory application being heard at an earlier date, the background was described in considerable detail. This summary unquestionably canvasses the facts from the applicants’ perspective. It is not consistent in all respects with the affidavit evidence offered on behalf of the defendants. Obviously, it has…

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 Mauger v Tucker

Details

AGLC: Mauger v Tucker [2021] NZHC 3214
Case: [2021] NZHC 3214
Decision Date: 29 November 2021

CaseChat Overview and Summary

The High Court of New Zealand, Christchurch Registry, heard an application to substitute the children of Warner Mauger, who passed away during the proceedings, as plaintiffs in a claim against two defendants. The original plaintiff, Mr. Mauger, had executed two deeds of gift in January 2019, one for $550,000 to Simon Tucker and another for $485,000 to Louise Hermansson. The children of Mr. Mauger, through their litigation guardian Penelope Cron, sought to challenge the validity of these gifts on the basis of unconscionability. The defendants argued that the gifts were valid and that the proceeding should be struck out.

The court considered the application to substitute the children as plaintiffs under rule 4.52 of the High Court Rules 2016, which allows for the substitution of parties when there has been a change or transmission of interest. The court found that the children were the successors to Mr. Mauger's interest in the proceeding and that it was both necessary and desirable to substitute them as plaintiffs to allow the claim to proceed. The court also rejected arguments that the assignment of the cause of action from the executors to the children was unlawful.

The court then addressed the defendants' applications to strike out the proceeding under rule 15.1 of the High Court Rules, which allows for the striking out of pleadings that constitute an abuse of process. The defendants argued that the proceeding was an abuse of process due to the ex parte application made by Ms. Cron to be appointed as her father's litigation guardian. However, the court found that the application was not an abuse of process and that striking out the proceeding would not serve a useful purpose.

The court ordered that the children of Mr. Mauger be substituted for him as plaintiffs and dismissed the defendants' applications to strike out the proceeding. Costs were reserved for further consideration.

Orders