Milne v Partington

[2021] NZHC 230

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-0820

[2021] NZHC 230

BETWEEN

ALLISON MILNE

Plaintiff

AND

BARBARA ELLEN PARTINGTON and WARREN JOHN PARTINGTON as

executors and administrators of the ESTATE OF DONALD GEORGE MILNE (deceased)

Defendants

Hearing:

17 February 2021

Appearances:

J D Turner for the Plaintiff

J Armstrong for the Defendants

Judgment:

22 February 2021

JUDGMENT OF POWELL J

[Application for leave to file amended Statement of Claim]

This judgment was delivered by me on 22 February 2021 at 12 noon pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MILNE v PARTINGTON [2021] NZHC 230 [22 February 2021]

[1]    The present application by the plaintiff Ms Milne to file an amended statement of claim came before me in the Duty Judge list on 17 February 2021. There was some urgency as the proceedings were set down for a three-day fixture commencing on Monday 22 February 2021. After hearing argument from the parties, I declined the application and advised my written judgment would follow in due course.

[2]    At issue in the proceedings as pleaded is whether the plaintiff is entitled to specific performance of an agreement for sale and purchase entered into by the plaintiff, Allison Milne, and Donald George Milne  in  respect  of  a  property  at  224 Molesworth Drive, Mangawhai. Mr Milne subsequently passed away and the defendants as executors and administrators of his estate have challenged the agreement, including raising various affirmative defences such as that it was an unconscionable bargain, was not a binding agreement, was non est factum, and otherwise seek rectification. In her reply to the affirmative defences, Ms Milne has pleaded that it was not an unconscionable bargain, that there was no extortion, procedural impropriety or inadequate consideration, denies that the agreement was not dated and/or was non est factum, and opposes any form of rectification.

[3]    It is against this context that Ms Milne sought to amend the statement of claim to add a second cause of action invoking the Law Reform (Testamentary Promises) Act 1949 on the basis that:

Donald Milne promised to sell and transfer the freehold interest entitled to the property to the plaintiff in exchange for the sum of $470,000 as a promise and by testamentary provision for the plaintiff and in reward for her rendering of work or services to him in his lifetime, either on 1 October 2019 and in any event on his death.

[4]    Mr Turner, on behalf of Ms Milne, acknowledged that the amendment sought has come late in the piece but nonetheless submitted that the courts will allow such an amendment in order that the real matters at issue between parties can be addressed. Moreover, Mr Turner submitted that the cause of action had been effectively foreshadowed in the evidence already filed, and that only limited supplementary questioning would be required of Ms Milne at the hearing and that otherwise there would be no prejudice to the defendants.

Discussion

[5]    I did not accept those submissions and dismissed the application, agreeing with the defendants that it was inappropriate to make the amendments sought for a variety of reasons including that the defendants would inevitably be prejudiced if the amended statement of claim had been allowed to be filed.

[6]    First, it is clear, contrary to Mr Turner’s submissions, that allowing the plaintiff to plead a cause of action based on the Law Reform (Testamentary Promises) Act 1956 does not bring the real issue between the parties to the Court. On the contrary, I accept Mr Armstrong’s submissions on behalf of the defendants, that the proposed additional cause of action is in fact directly antithetical to the way in which the case has been brought to date. It is in fact difficult to see, given the way the plaintiff has previously pleaded its case, that such a pleading was in anyway foreshadowed or even reasonably arguable on the material currently before the Court, which as summarised above has hitherto been pleaded as entirely a contract claim. Also, as noted above, Ms Milne has to date rejected any suggestion her agreement for sale and purchase is other than an enforceable contract in respect of which the consideration was adequate.

[7]    Given that position and noting that there appears to be no suggestion of any such promise in the brief of evidence filed on behalf of Ms Milne, it was exceedingly difficult to understand the basis for the proposed additional cause of action. Instead, as Mr Armstrong submitted for the defendants, to allow the amendment at this late stage while directing that the hearing proceed, would not only deprive the defendants of considering whether further discovery is required, it would also effectively deprive them of the chance to consider whether additional evidence needs to be briefed, particularly given the indication that Mr Turner intends to establish the cause of action through “supplementary questions” of Ms Milne, with the defendants having no idea as to the nature of those questions or the likely response.

[8]    At the same time, as I discussed with counsel, I considered it would be unreasonable to expect the present fixture to be adjourned at this late stage, when it is otherwise ready for hearing on the issues identified in the pleadings. Any such

adjournment would subject the defendants to unreasonable stress, noting that they are acting in a representative capacity and are themselves elderly.

[9]    Finally, it is appropriate also  to  note  and  as  Mr  Turner  acknowledged,  Ms Milne appeared to be out of time to bring a testamentary promises claim in any event and no application for leave to bring a claim out of time has in fact been filed to date.

[10]   Taking these matters together, the fixture commencing 22 February 2021 was confirmed on the basis of the existing pleadings filed, and the application to file an amended statement of claim was dismissed. Costs on the application are to be determined as party of any costs award on the substantive proceedings.

Powell J