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…

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.

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Details

Case: [2024] NZHC 3924
Decision Date: 20 December 2024

CaseChat Overview and Summary

The High Court of New Zealand in Whangarei presided over the case of Moore v Maslen, involving Theresa Leanne Moore and Jason Harley Dear, the plaintiffs, against Gloria May Maslen, Carole Ann Hardie as executors and trustees of the Estate of Joy May Thornton, and Thornton Parklands Trustee Limited as trustees of the Thornton Parklands Trust, the defendants. The plaintiffs sought proper and adequate provision from the estate under the Family Protection Act 1955, alleging that the deceased was unduly influenced when completing certain testamentary and trust documents. The case required the court to decide on the scope of tailored discovery relevant to the claims presented by the plaintiffs.

The court was tasked with determining the appropriate scope of tailored discovery, ensuring that it was proportional, relevant, and not overly burdensome to the defendants. The plaintiffs argued for a broad discovery scope, positing that in family protection and undue influence cases, relevant evidence could be found in various forms of documentation. In contrast, the defendants argued that the plaintiffs' requests were too broad and potentially amounted to fishing expeditions. The court had to balance these considerations, focusing on documents relevant to the pleaded issues and limiting the period of enquiry to a timeframe relevant to the actions in question.

In its judgment, the court ruled that tailored discovery should be confined to documents that were relevant to the specific issues raised in the pleadings. The court limited the discovery to periods proximate to the dates of the impugned documents, from 1 January 2012 to the date of the deceased's death. It also specified that documents relating to the day-to-day conduct and management of the trust were not relevant to the pleaded claims. The court ordered that certain documents be discovered, such as the deceased's wills, documents evidencing testamentary intentions, legal advice records, and relevant medical records. Certain other documents, like those detailing the day-to-day management of the trust and beneficiary accounts, were excluded from discovery as they were not relevant to the claims.

The final orders outlined specific documents and categories of documents to be discovered by each party, ensuring that the discovery process was focused and proportionate to the issues at hand. The court's decision aimed to facilitate the plaintiffs' ability to prove their claims while preventing undue burden on the defendants.

Orders