McKelvie v McKelvie

[2012] NZHC 163

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-002350 [2012] NZHC 163

BETWEEN  MAUREEN ANNE MCKELVIE First Plaintiff

ANDROSEMARY ANNE FOLLAS, SIMON JOHN BURKE MCKELVIE, JOHN ALEXANDER BURKE MCKELVIE, MAUREEN ANNE MCKELVIE

Second Plaintiffs

ANDMARK LEONARD BURKE MCKELVIE Defendant

ANDBARRY BLENNERHASSETT Counterclaim Defendant

Hearing:         15 February 2012

Counsel:         D Campbell for Plaintiffs and Counterclaim Defendant

J Caen for Defendant

Judgment:      15 February 2012

JUDGMENT OF ASHER J

Solicitors/Counsel:

Kensington Swan, DX CP22001, Auckland 1142. Email:  [email protected]

Taylor Grant Tesiram, PO Box 4039, Shortland Street, Auckland 1140. Email:  [email protected]

MCKELVIE V MCKELVIE HC AK CIV-2011-404-002350 [15 February 2012]

[1]      This is an inter-family dispute.  The background is shortly referred to in the

Minute of Wylie J of 14 December 2011.

[2]      In accordance with Wylie J’s Minute an application for the appointment of a litigation guardian to act for Mrs McKelvie has been filed, albeit a week late.  A further week was provided for in his timetable (the date being 3 February 2012) for a notice of opposition and no notice of opposition has been filed.

[3]      Ms Caen for the defendant confirmed this morning that the application for appointment of the litigation guardian was not opposed, but sought an adjournment of the application to enable further inspection so that the position of the proposed litigation guardian, Rosemary Anne Follas, could be better understood.

[4]      Mr Campbell for the plaintiffs opposes any adjournment and asks that an order be made and that there be a direction for a settlement conference.  Both sides agree  that  a  settlement  conference  is  desirable.    The  amount  at  stake  in  this proceeding in money terms is not great and it is very important that costs be minimised and not become disproportionate.

[5]      Even allowing for the slippage the defendant if he wished to oppose the appointment of a litigation guardian should have filed a notice of opposition by now. No good ground is put forward in opposition to the appointment and I am not satisfied that further inspection is required so that the defendant can better assess the proposed appointment.  I also note that the documents are available for inspection and have been for some time.

[6]      It  is  also  relevant  that  if  something  of  great  importance  does  arise  the defendant can apply to have the appointment set aside.  It is also to be noted that the application in addition to seeking the order appointing a litigation guardian, seeks an order that the proceeding not be withdrawn, abandoned or settled without the prior approval of the Court.

[7]      In the circumstances I decline the request for an adjournment.

Summary

[8]      I make the following orders:

(a)       In accordance with the application of 2 February 2012

1. Appointing Rosemary Anne Follas as litigation guardian of

   Maureen Anne McKelvie in this proceeding;

   (ii)That the proceeding not be withdrawn, abandoned or settled without the prior approval of the Court.

[9]      I direct that there be a settlement conference.  The parties should liaise with the scheduling office and obtain a suitable date.

[10]     There is no need for any further formal interlocutory orders as discovery and inspection has proceeded informally to save costs.   However, I do record that the plaintiffs have agreed to provide inspection and the defendant has agreed to carry out inspection by 5pm, Tuesday 21 February 2012.

……………………………..

Asher J