McLaughlin v McLaughlin - [2023] NZHC 1809

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-84

[2023] NZHC 1809

BETWEEN
JUDITH MARIE McLAUGHLIN

and
VICTOR JAMES McLAUGHLIN
Plaintiffs

AND

ANDREW GORDON McLAUGHLIN

Defendant

Hearing: 22 June 2023

Appearances:

Murray McKechnie for the Plaintiffs No appearance for the Defendant

Fraser Wood / Ms Sheely for the litigation guardian

Judgment:

12 July 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for summary judgment]

This judgment was delivered by me on 12 July 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Le Pine & Co (Louie Foley), Taupo, for the Plaintiffs
Tompkins Wake (Fraser Wood), Rotorua, for the Litigation Guardian
Counsel:
Murray McKechnie, Barrister, Rotorua, for the Plaintiffs

McLAUGHLIN v McLAUGHLIN [2023] NZHC 1809 [12 July 2023]

Introduction

[1] Ms Judith McLaughlin (Judith) and Mr Victor McLaughlin (Victor) seek summary judgment against their son and brother respectively, Mr Andrew McLaughlin (Andrew).1

Background

[2] Judith, Victor, and Andrew are co-owners of a farm at 42 Brett Road, RD 3, Rotorua (the farm).

[3] Following the death of Judith’s husband and the ensuing High Court litigation, Judith, Victor and Andrew now own the farm in four-eighths, three-eighths and one- eighth shares respectively. Both Victor and Andrews shares are held in separate trusts (the Andrew McLaughlin Family Trust and the JM McLaughlin Family Trust) in which Judith and the corresponding son are trustees.

[4] Judith and Victor both wish to sell the farm and issued Andrew with notice of that intention by documents served on him by Mr Terry Reardon (Mr Reardon) on 25 January 2022. Andrew has refused to engage on and agree to the sale. Given Andrew’s lack of engagement in the proceeding and on the evidence presented in respect of his mental condition and his behaviour, on 19 October 2022 the Court appointed Mr Fraser Wood (Mr Wood) his litigation guardian.2

[5] In a memorandum, Mr Wood has set out extensive efforts to contact Andrew about these proceedings and despite hearing from a close friend of Andrew’s, who confirmed that he had received all incoming communications, he has not responded to

1 For convenience and clarity, and meaning no disrespect, given the commonality of names, I will generally refer to each family member by their given name.
2 McLaughlin v McLaughlin HC Rotorua CIV-2022-463-84, 19 October 2022 (Minute of Associate Judge Taylor).

those efforts.3 On this basis, no opposition has been received to the application and it is to proceed unopposed.

Judith and Victor’s application for summary judgment

[6]Judith and Victor seek orders:4

(a) The removal of Andrew Gordon McLaughlin as a trustee of the trust of 4th October 2010 referred to in the Statement of Claim.

(b) The sale of the Farm at 42 Brett Road, RD 3, Rotorua;

(c) Orders as to the distribution of the sale proceeds as set out in the Statement of Claim; and

(d)…

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 McLaughlin v McLaughlin

Details

AGLC: McLaughlin v McLaughlin [2023] NZHC 1809
Case: [2023] NZHC 1809
Decision Date: 12 July 2023

CaseChat Overview and Summary

Judith and Victor McLaughlin sought summary judgment against their son, Andrew McLaughlin, to sell a farm located at 42 Brett Road, Rotorua. The parties are co-owners of the farm, with ownership shares of four-eighths, three-eighths, and one-eighth respectively. Judith and Victor wished to sell the farm but Andrew refused to agree to the sale. Andrew’s lack of engagement in the proceeding led to the appointment of a litigation guardian. The plaintiffs sought to remove Andrew as a trustee of his trust, sale of the farm, orders as to the distribution of the sale proceeds, and orders as to costs.

The legal issue before the court was whether the defendant had no defence to the claim. The court had to consider the evidence presented and determine if there was any real question to be tried. The court had a residual discretion to grant summary judgment, but this discretion was to be restrictively applied.

The court found that the defendant had no defence to the claim. Andrew had not taken any steps in relation to the proceedings and his litigation guardian had not raised any possible defence. The court considered the factors set out in section 342 of the Property Law Act 2007 and was satisfied that the orders sought should be made. The court ordered the sale of the farm, authorised Judith and Victor to sign all documents in relation to the sale on behalf of Andrew, and directed that the proceeds of sale be divided between the co-owners according to their ownership shares. The court also ordered that the costs of the litigation guardian be met from the proceeds of sale.

In conclusion, the court granted the plaintiffs’ application for summary judgment and ordered the sale of the farm. The court found that the defendant had no defence to the claim and that there was no real question to be tried. The court considered the evidence presented and the factors set out in the Property Law Act 2007 in making its decision. The court’s order for the sale of the farm will allow the plaintiffs to retire and the defendant will receive his share of the proceeds of sale.

Orders