McKendry v Perawiti - [2023] NZHC 393

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-10

[2023] NZHC 393

UNDER the High Court Rules 2016

IN THE MATTER

of an application for freezing orders

BETWEEN

STEVEN WAYNE MCKENDRY

Plaintiff

AND

GEORGINA ANN PERAWITI

Defendant

Hearing: On the papers

Appearances:

N Jessen and A R J Sinclair for the Plaintiff

Judgment:

3 March 2023

JUDGMENT OF COOKE J

(Without notice freezing orders)

[1] The plaintiff’s without notice interlocutory application for freezing orders under r 32.5 of the High Court Rules 2016 has been referred to me as Duty Judge.

[2] The application is filed at the same time as a statement of claim, and is supported by an affidavit from the plaintiff dated 2 March 2023 as well as a memorandum of counsel of the same date. An undertaking from the plaintiff, and the proposed order has also been filed.

Background

[3] The plaintiff and defendant have been in a long term relationship, and more recently they have married following the defendant’s cancer diagnosis.

MCKENDRY v PERAWITI [2023] NZHC 393 [3 March 2023]

[4] The plaintiff and defendant are joint owners of the life insurance policy with AIA New Zealand. The amount under the policy is payable if one of them dies, or becomes terminally ill. In the event of death the other owner receives the payment. With terminal illness the payment is made to both of the insured jointly.

[5] The defendant has been diagnosed with terminal lung cancer. The plaintiff says that as her cancer, and the treatment of it has progressed her behaviour has become more erratic and irrational. Most recently the plaintiff says that the defendant has made a claim on the insurance policy which has been paid out by AIA New Zealand into a bank account in the sole control of the defendant, and that the defendant has informed the plaintiff that he will not benefit from the pay-out. It is also alleged that the defendant and one of her daughters forged the plaintiff’s signature on the claim form and/or witnessed that forged signature leading to the pay-out being made. The plaintiff also says that the defendant has been dissipating funds from the account in which the amount has been paid, and he has produced evidence in the form of copies of bank statements demonstrating the receipt and dissipation of funds.

[6] In the circumstances the plaintiff applies for a freezing order preventing any further dissipation of the funds from this account other than for normal living expenses, payments in the ordinary course of business, or for legal expenses relating to the freezing order.

Relevant principles

Rule 32 relevantly provides:

32.5 Order against judgment debtor or prospective judgment debtor or third party

(1)This rule applies if—

…

(b)an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in—

the court;

…

(4) The court may make a freezing order or an ancillary order or…

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 McKendry v Perawiti

Details

AGLC: McKendry v Perawiti [2023] NZHC 393
Case: [2023] NZHC 393
Decision Date: 3 March 2023

CaseChat Overview and Summary

The High Court of New Zealand, Palmerston North Registry, dealt with an interlocutory application for freezing orders under rule 32.5 of the High Court Rules 2016. The plaintiff, Steven Wayne McKendry, filed the application at the same time as a statement of claim, seeking to prevent the dissipation of funds from a bank account in which a life insurance payout had been deposited. The defendant, Georgina Ann Perawiti, is a joint policyholder with McKendry and has been diagnosed with terminal lung cancer. McKendry claims that Perawiti has been dissipating the funds from the account and that she intends to exclude him from benefiting from the payout.

The court had to determine whether the plaintiff had a good arguable case, whether there was a danger that assets would be disposed of or diminished, and where the balance of convenience lay. The court found that McKendry had a good arguable case based on the evidence of conversion of joint property and deception. The evidence showed that Perawiti had refused McKendry access to the funds and had been making significant payments from the account. The court concluded that the balance of convenience favoured making the freezing orders in McKendry's favour, to preserve the position until further court proceedings could be avoided.

The court granted the application for freezing orders, applying to the defendant's bank account until the Judge's Chambers List on 20 March 2023. The defendant was given leave to apply to discharge the order before that time by an application made on notice. The plaintiff was directed to serve a copy of the materials filed in support of this application when the proceedings were served.

Orders