Moore v Maslen

[2024] NZHC 3924

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-488-000105

[2024] NZHC 3924

UNDER

the Family Protection Act 1955 and Part 18 of the High Court Rules 2016

BETWEEN

THERESA LEANNE MOORE

First Plaintiff

JASON HARLEY DEAR
Second Plaintiff

AND

GLORIA MAY MASLEN and CAROLE

ANN HARDIE as Executors and Trustees of the Estate of Joy May Thornton (deceased) First Defendants

GLORIA MAY MASLEN, CAROLE ANN HARDIE and THORNTON PARKLANDS

TRUSTEE LIMITED as Trustees of the Thornton Parklands Trust

Second Defendants

Hearing:

On the papers

Appearances:

D J Rooke for the Plaintiffs

A Easterbrook / R Ivess for the First Defendants T Andrews for the Second Defendant

Judgment:

20 December 2024

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

MOORE v MASLEN [2024] NZHC 3924 [20 December 2024]

This judgment was delivered by me on 20 December 2024 at 11.00 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Background

[1]                 This claim concerns the estate of Joy May Thornton. The plaintiffs claim under the Family Protection Act 1955 for proper and adequate provision from the estate. They also claim that the deceased was unduly influenced when completing certain testamentary and trust documents.

[2]                 The proceedings are based on two causes of action seeking appropriate remedy:

(a)a claim under the Family Protection Act 1955 for proper and adequate provision for the plaintiffs each from the estate;

(b)a claim that the deceased was unduly influenced in the completion of certain testamentary and trust documents seeking orders that certain documents be declared void and of no effect, recall of probate, and direction for application for probate and related orders.

[3]                 The parties have exchanged affidavit evidence. A five day hearing is scheduled for 23 June 2025.

[4]                 Despite the extensive affidavit evidence and documents exhibited to those affidavits, the parties have not been able to agree on the extent of tailored discovery required in this case.

[5]                 The parties are agreed that a decision may be made on the papers and have filed submissions in relation to the extent of tailored discovery. This decision determines that application.

Approach to tailored discovery

[6]The parties are agreed that tailored discovery is appropriate in this case.

[7]The following summation of the approach to tailored discovery is taken from

Commerce Commission v Cathay Pacific Airways:1

(a)proportionality is central to tailored discovery;

(b)tailored discovery will only be ordered for documents that are relevant to the pleaded issues;

(c)orders of a ‘fishing’ nature will not be ordered as part of tailored discovery.

[8]                 Proportionality involves weighing the degree of relevance and the likely usefulness of the documents sought, against the costs and inconvenience involved in their discovery.

[9]The test for relevance involves two parts:

(a)probative value – whether the evidence has a logical tendency to prove or disprove the proposition which is offered; and

(b)materiality – whether the evidence offered is about a matter of fact at issue in the case.

[10]              The plaintiffs submit that the threshold for relevance is relatively low, being evidence which “has a tendency, if only a slight tendency” to prove something of consequence to the determination of the proceedings.2

[11]              The plaintiffs seek to have discovery granted on a broad ambit, arguing that in the context of a proceeding involving family protection and undue influence issues,

1      Commerce Commission v Cathay Pacific Airways [2012] NZHC 726.

2      Wi v R [2010] 2 NZLR 11 (SC) at [19].

relevant evidence can be or may include a combination of actions and words, some of which is recorded in whole or in part, or even alluded to in documents and may not on the face and in isolation show direct relevance.

[12]              They say that in matters relevant to influence, there is interaction between the participants in person and by telephone, at times recorded in whole or in part, such as in notes made, letters drafted and/or issued, texts, emails, as well as in legal communication and informal and formal documents. The plaintiffs submit that all such documents are relevant when considering issues raised by the proceeding.

[13]              The defendants seek to restrict discovery, claiming that there is an element of fishing or lack of clarity in what the plaintiffs seek.

[14]              The role of the Court in determining this application is to balance the plaintiffs’ desire for wide-ranging discovery, which may assist it in proving the required elements of their claim against issues raised by the defendants of relevance, proportionality, and the extent to which they have already complied with their discovery obligations through the filing of the extensive affidavit evidence currently before the Court.

Discussion

[15]              The plaintiffs have provided a schedule of the discovery requested by them and each of the defendants has responded to that.

[16]That schedule, is attached as Schedule A.

[17]              The approach the Court has taken to determination of the contested discovery categories is to:

(a)confine as much as possible the tailored discovery categories to issues raised by the pleadings;

(b)to bear in mind that many of the documents considered relevant by the parties have already been exhibited to the affidavit evidence filed in this proceeding;

(c)to limit the ambit of enquiry to periods proximate to the dates of the impugned documents, which is the period commencing with the will dated 4 February 2013 through to the deed excluding and conditionally appointing  beneficiaries  of   the  Thornton   Parklands  Trust   dated 7 September 2020. The Court considers that the period 1 January 2012 to the date of death balances this enquiry;

(d)documents relating to the establishment of and transfer to the Thornton Parkland Trust are relevant, but the day-to-day conduct and management of the trust is not. In particular, documents extending to trustee decision making and trust administration are not relevant, as those issues do not form part of the pleaded claims. Neither do trustee decisions regarding distributions or assistance to beneficiaries, as the management of the trust is not in issue;

(e)The financial state of the trust could be relevant, as that could be relevant to the pleaded claims as they relate to the settlor’s actions.

Determination on discovery issues

[18]              The Court’s determination on the tailored discovery issues is set out in the Schedule, using the numbering from the plaintiffs’ schedule.

Associate Judge Cogswell

Solicitors:

GML Lawyers Ltd, Auckland Thomson Wilson, Whangarei WRMK, Whangarei

SCHEDULE A

Orig. ref	Discovery Requested in Plaintiffs’ schedule	Decision
First Defendant, First cause of action – Family Protection Act
i	Any and all of the deceased’s wills and codicils wherever held	To be discovered.
ii	Any and all documents recording or relating to Joy’s testamentary intentions or wishes completed or held by Joy, her family, her professional advisors including lawyers and accountants and business associated (including Wally Yovich) or any other person	To be discovered, but restricted to documents completed or held by Joy or her professional advisors.
iii	Any and all documents evidencing the reasons Joy had for making or not making any testamentary disposition from her estate for any person	To be discovered.
iv	Any and all documents evidencing legal advice given to Joy about her Will/s or about any actual or proposed testamentary disposition/s.	To be discovered.
v	Any document evidencing any inter vivos disposition/s	Not to be discovered, as a repeat of (v) below.
vi	Any and all documents evidencing inter vivos disposition made by Joy to the Plaintiffs, Gloria or Carole or to their children from 2009 to date of death.	To be discovered.
vii	Copy all prior disclosed but redacted legal instruction file notes, with all redaction removed including those of “D” 23/1/33, 23/1/13, “F” 13/3/18.	To be discovered without redactions.
viii	All documents relating to Stuart Spicer meetings with Joy without redaction as not discovered in the above	To be discovered, but restricted to just "relevant" documents and without redaction.

ix	All documents relating to Megan Bawden meetings with Joy without redaction as not discovered in the above	To be discovered, but restricted to just "relevant" documents and without redaction.
xi	A current statement, the legal ledger record and other statements and documents held to provide and support a current record of estate assets and liabilities	To be discovered.
xii	Legal files currently held including records of wills, and deeds held (including by Webb Ross and WRMK) in respect of making of wills, gifting, establishment of and administration of trusts, purchase of real estate beyond those documents discovered as above.	Only those documents that are relevant to the pleaded claims, and not already discovered above, to be discovered.
First Defendant, Second Cause of Action – Undue Influence
xi	All medical records held in respect of the deceased from 1 January 2008 to date of death, including those held by:	To be discovered.
Her general practitioner at Bush Road Medical Centre Dr Simon Wilkinson	To be discovered.
The medical practitioner attending at Jane Mander Retirement Village (esp 2014 and 2020)	To be discovered.
Medical records at Whangārei Hospital, including social worker notes	To be discovered.
WINZ and DHB records	Not to be discovered.
xii	All and any documents relevant to the exercise or attempted exercise of control by Gloria and Carole over the deceased’s personal affairs	To be discovered.
xiii	Any and all written communication between the deceased and the plaintiffs between 2009 and date of death.	To be discovered in the period 1 January 2012 to date of death.

xiv	Any written communication between the deceased and Gloria and Carole concerning the plaintiffs or the deceased’s estate planning arrangements between 2009 and the date of death.	To be discovered in the period 1 January 2012 to date of death.
xv	Documents that evidence the presence or absence of any influence or pressure brought to bear on the deceased by either Carole or Glorias (sic) before the date of the deceased’s death.	To be discovered in the period 1 January 2012 to date of death.
OTHER PARTIES
SECOND DEFENDANT – Second Cause of Action – Undue Influence
i	All of the deeds from creation to date including the deed of trust, deeds of variation or any changes in the original deed, deeds of change of trustees	To be discovered.
ii	All trust minutes	Trust records relating specifically to Joy's exercise of her power as settlor and her decision to make changes to the trust to be discovered.
iii	All trustee and or settlor correspondence and record of communication and discussion with or without advisers	To be discovered as relating specifically to Joy's exercise of her power as settlor and her decision to make changes to the trust.
iv	All records of communication between the settlor trustees and legal and accounting advisors	To be discovered as they relate to wills and and testamentary dispositions and Joy's reasons for her decision to make changes to the trust.
v	All annual financial statements of the trust including beneficiary accounts and beneficiary accounts (sic) and statements for the deceased and her estate from initiation to date	To be discovered, except for beneficiary accounts.

vi	All bank statements of the trust bank account from creation to date	Not to be discovered.
vii	All trust records of sale purchase and gifting of assets between Joy and the trust from creation to date (including money transfers if not in the bank statements)	To be discovered.
xiii	Any and all documents and written communication between the deceased, Gloria and Carole between 2009 and date of death concerning the deceased’s decision to make changes to the trust	To be discovered in the period 1 January 2012 to date of death.
ix	Any and all documents and written communication between the deceased, Gloria and Carole between 2009 and date of death concerning the deceased’s decision as settlor to make changes to the trust	To be discovered in the period 1 January 2012 to date of death.
x	Any and all documents evidencing any influence pressure or control over the deceased by either Gloria or Carole in respect of the deceased’s decision making as settlor of the trust	To be discovered in the period 1 January 2012 to date of death.
PLAINTIFFS
i	Any and all documents evidencing any inter vivos disposition made by the deceased to the plaintiffs Gloria or Carole from 2009 to date of death	To be discovered.
ii	Any and all written communication between the deceased and the plaintiffs between 2009 and date of death	To be discovered.
iii	Any and all documents that evidence the presence or absence of any influence or pressure brought to bear on the deceased by either Carole or Gloria before 7September 2020	To be discovered.