Murray-Kendall v Wilson - [2015] NZHC 338

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-915 [2015] NZHC 338

IN THE MATTER OF
An application for further provision out of

the Estate of Kenneth Murray Kendall, deceased, pusuant to the Law Reform (Testamentary Promises) Act 1949 and Recall of Probate.

BETWEEN

ROSALIND MURRAY-KENDALL Plaintiff

AND

PETER WEBSTER WILSON AND HELEN CATHERINE WILKINS First Defendants

PETER WEBSTER WILSON AND PETER WARWICK MACKY Second Defendants

Hearing: 9 February 2015

Appearances:

No appearance for Plaintiff
Ms S Clapham for Defendants

Judgment:

3 March 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
03.03.15 at 4.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MURRAY-KENDALL v WILSON & Ors [2015] NZHC 338 [3 March 2015]

Introduction

[1] This is a second application to strike out proceedings which the defendants have brought. The defendants’ first ground for strike-out is that the plaintiff’s statement of claim does not disclose a reasonably arguable cause of action because it does not point to a viable testamentary promise. The second ground is based on the claim that the pleading in its current (amended) form is confused and likely to prejudice the defendants’ preparation for trial.

Background

[2] The background to the case generally was considered in the judgment which I issued on the first application on 2 May 2014. I do not intend to recanvas the background concerning the proceedings which the plaintiff has brought because there was an adequate consideration of those factors in that judgment.

[3] It is sufficient to note that the proceeding which the plaintiff has brought is now restricted to a claim under s 3 Law Reform (Testamentary Promises) Act 1949. The previous judgment was concerned with, amongst other things, the application which the defendant brought to strike out the Testamentary Promises claim. While considerable deficiencies were identified with that claim in the judgment, no order was made striking out the claim and the plaintiff was given an opportunity to re- plead that part of the claim. Since the date of the earlier judgment, a fourth amended statement of claim has been filed. The defendants have, in response, filed a second amended interlocutory application for order striking out the plaintiff’s statement of claim. The defendants assert that there are still fundamental problems with the statement of claim. The defendants’ arguments are considered in more detail hereunder.

[4] Finally, I note that the plaintiff did not appear at the hearing of the strikeout application which took place on 10 February 2015. Because I did not accept her reasons for not attending, and because I did not consider that there were adequate grounds present which would justify an adjournment of the fixture, the case

proceeded on that date. The reasons for that determination are set out in a minute which I issued on 10 February 2015.

Principles

[5] The strikeout application is brought pursuant to (principally) rule 15.1 of the

High Court Rules which provides as follows:

15.1 Dismissing 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 Murray-Kendall v Wilson

Details

AGLC: Murray-Kendall v Wilson [2015] NZHC 338
Case: [2015] NZHC 338
Decision Date: 3 March 2015

CaseChat Overview and Summary

In Murray-Kendall v Wilson, the plaintiff, Rosalind Murray-Kendall, applied for further provision out of the estate of Kenneth Murray Kendall, deceased. The defendants, Peter Webster Wilson, Helen Catherine Wilkins, Peter Webster Wilson, and Peter Warwick Macky, sought to strike out the plaintiff's statement of claim on the grounds that it did not disclose a reasonably arguable cause of action and that it was confusing and prejudicial to their trial preparation. The primary legal issue before the court was whether the plaintiff's statement of claim sufficiently disclosed a cause of action under the Law Reform (Testamentary Promises) Act 1949. Additionally, the court needed to determine whether the statement of claim was so poorly drafted as to warrant a strike-out under the High Court Rules. The court found that while the plaintiff's statement of claim did not clearly articulate the services rendered in relation to the alleged testamentary promise, it was not the role of the court on a strike-out application to assess the credibility of the claims. The court also noted that the statement of claim, despite its deficiencies, did set out the nature of the plaintiff's claim. However, the court concluded that the statement of claim was likely to cause prejudice or delay and, therefore, ordered that the plaintiff pay costs to the defendants for the interlocutory application and its preparation and hearing.

The court dismissed the defendants' application for a strike-out but ordered the plaintiff to pay costs to the defendants, acknowledging the delays and costs incurred due to the poor drafting of the statement of claim. The court emphasized the importance of clear and concise pleadings, particularly for self-represented litigants, and warned that further inadequate pleadings could result in more severe consequences. The court also indicated that it would consider an application for security for costs at the next case management conference.

Orders