Murray-Kendall v Wilson
[2015] NZHC 338
•3 March 2015
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 DefendantsJudgment:
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 staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court's inherent jurisdiction.
Compare: 1908 No 89 Schedule 2 rr 186, 477.
[6] McGechan on Procedure provides an accurate summary of the principles that apply to strike out applications:
The established criteria for striking out was summarised by the Court of Appeal in A-G v Prince [1998] 1 NZLR 262; (1997) 16 FRNZ 258; [1998] NZFLR 145 (CA), at p 267, and endorsed by the Supreme Court in Couch v A-G [2008] NZSC 45, at para 33, per Elias CJ and Anderson J:
(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b) The cause of action or defence must be clearly untenable. In Couch Elias CJ and Anderson J, at para 33, said: “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.”
(c) The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
First ground of application
[7] The first ground for the strike-out application which the defendants put forward is that the pleading does not disclose a reasonably arguable cause of action because it contains no viable testamentary promise. It was the submission of the plaintiff that:
The pleaded “promise” does not amount to a testamentary promise because it lacks any credible connection with the services alleged to have been performed. There is no nexus between the promise and the services rendered and the purported pleading of such a nexus is speculative and without proper foundation
The requirement of mutuality between the services rendered and the promise to reward
[8] Ms Clapham, for the defendants, submitted that it is necessary for a plaintiff to demonstrate that there is “mutuality” between the services rendered and the promise made. She referred to the Court of Appeal case of Jones v Public Trustee,1 where the Court of Appeal analysed the making of the promise as a reward and that this was the central feature of the cause of action under s 3 of the Testamentary Promises Act. Ms Clapham referred to the following passage from that authority:2
The important question in every case, is whether the claimant has satisfactorily proved that the deceased person did make a “promise” to him of a testamentary provision as a reward for services rendered or to be rendered to the deceased.
[9] Ms Clapham referred me to the judgment of Ellis J in Webb v Smith, which
held that some “form of mutuality” between the promise and the service is a prerequisite to a successful claim.3 That case was not a strike-out application. It is
1 Jones v Public Trustee [1962] NZLR 363 (CA).
2 At 364 (emphasis added).
3 Webb v Smith HC Tauranga CIV-2010-470-000264, 14 October 2011 at [34].
correct that the Judge did note that not only was the requirement of “mutuality” not
pleaded but also there was no evidence establishing it.
[10] In the present case, whatever the strengths and weaknesses the plaintiffs case may ultimately be found to possess once evidence is given, there is no doubt that the general purport of the statement of claim is to link the various categories of service allegedly provided to the promise which the plaintiff says was made to her.
[11] Ms Clapham also made reference to the requirement that the promise may not be gratuitious. She submitted:
8. The same proposition was put succinctly by Gendall J in Ireland v
Grant where the Court said:4
The essential requirement is that the promise is made to reward services rendered or work performed, and is not simply gratuitous. Such a nexus can either be express or, more commonly, inferred from the circumstances.
[12] I note that it is not necessary to prove with precision exactly what part of the services provided led to the promise being made. The point was illustrated by the case of Jones v Public Trustee.5 In that case an elderly man had family members come to stay with him in his house and they provided his keep and additional care as he got older. The arrangement continued for a period of 25 years. The plaintiff asserted that a promise had been made to the family members that the house would ultimately come to him or his wife.6 The approach that the Court took to assessing the requirements of a promise under the Act were explained by the Court in its judgment when it said:7
The learned Judge appears to have accepted the view that there were discussions in which the deceased may have said that the property would ultimately go to the appellant or his wife, but he seems to recoil from the conclusion that what was said ever amounted to a promise expressed or implied to reward the appellant for services. Even if it be accepted that at the inception of the arrangement in 1934, what was then said was too vague to constitute such a "promise" as the legislation contemplates, nevertheless with the passage of time it became, by implication, if not expressly, more sharply defined. At a time when the services being rendered quite
4 Ireland v Grant [2014] NZHC 1523 at [30] (emphasis added).
5 Above n 1.
6 At 6.
7 At 10 (emphasis added).
outweighed the advantages of living rent free, there were "statements or representations of fact or of intention." It is not necessary, in our opinion, to fix any particular point of time at which the arrangement developed into a promise within the meaning of the Act. There is abundant and uncontradicted evidence that it did so, and it is moreover what was to be expected as the old man became increasingly dependent upon the appellant and his wife.
[13] In this case, the plaintiff claims that, having the deceased indicate to her that he wanted to set up a retreat house, she helped him locate the property and advised him on its suitability which led to purchase of the property. She further claims that she provided some personal care to the deceased when he was ill. It is fair to say that having reviewed the evidence both in regard to the 2014 strike-out application and the current one, one is left with an impression that the value and extent of the claimed services seem to be disproportionate to the very considerable financial advantage that would have accrued to the plaintiff if the alleged promise had been kept. Further, the plaintiff will have the burden of proving that the promise was actuated by the services which she provided to the deceased. The Court will no doubt be required to consider whether it is plausible that the deceased would have intended to reward the plaintiff on such a scale having regard to the extent of the services provided. A further question is whether the services were in fact corresponding to the advantages she had received from the deceased in the form of accommodation and financial assistance.
[14] However Ms Clapham submits, and I agree, there is a lack of lucidity in the pleading as to exactly what services it was that the plaintiff says the deceased intended to reward her for. Nowhere can one find a concise setting out of this part of the plaintiff’s claim. If the pleading did not communicate this basic information then I would agree it would have to be struck out because it would not contain a statement of a viable cause of action.
[15] That said, I am also aware that it is not the place of the Court on a strike-out application to go on and enquire whether it is probable or likely that the deceased made a promise or that there was the appropriate linkage between the rendering of the services of the making of the promise. Such matters can be enquired into in the context of the summary judgment application. Therefore it would not be legitimate
to depart from the usual approach that the application is to be determined primarily on the pleadings, with the facts pleaded assumed to be true.
[16] The submissions which the defendants in this case make, in my view, go beyond permissible limits. The point which the applicant put forward is that contained in the passage excerpted at paragraph [8] above. The defendants’ counsel took the Court into an area which involved the credibility of the claims which the plaintiff was bringing. For example, Ms Clapham submits that the alleged promise that the deceased would leave her the property at Whangaehu after his death was plainly gratuitous and in no way linked with the services. Further, counsel pointed out that the property was not the deceased’s to leave to the plaintiff. That is because the property had been earlier settled on a trust of which the plaintiff and the step- children of the deceased, and one other person were included as beneficiaries. As such, Ms Clapham submits there is nothing in the deceased’s will to indicate an intention to reward the plaintiff for the services provided. As well, counsel pointed out that the plaintiff was cognisant of this fact because she recognised in a statement that she had made that, somehow, she would have to make provision for the step- children which he said would have been accomplished with funds from unsold bronze sculptures which the deceased had made and also by income to be generated.
Summary
[17] I accept that the evidence that is available to the defendants, and which they would put forward at trial, might indeed prove an insurmountable obstacle to the plaintiff’s claim. However I do not consider that on a strike-out application it is the function of the Court to enter into enquiries of that kind. There does seem to be a residual category of cases where, if it is clear that the facts upon which the claim is brought are entirely speculative and without foundation then the Court can strike out
the proceeding. That was the case in Attorney General v McVeagh.8
[18] However, McVeagh was concerned with an unusual set of facts. In that case, the question was whether a person who had been detained as a mental patient had
been misdiagnosed and had therefore, as he claimed, suffered medical misadventure.
8 Attorney General v McVeagh [1995] 1 NZLR 558 (CA).
The Court of Appeal first reiterated the standard approach which is taken to issues of fact which the pleadings give rise to, stating:9
The Court is entitled to receive affidavit evidence on a striking out application, and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a striking out application is dealt with on the footing that the pleaded facts can be proved… But there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further. If the evidence Mr Ivory wishes to tender shows that this is such a case, then the evidence should be received. If it does not, then the matter must be dealt with on the pleadings. And on the pleadings, there is no justification for striking out to the extent that the case turns on unlawful detention as distinct from misdiagnosis.
[19] The Court in that case was prepared to depart from the customary approach because of the specific factual allegations which the plaintiff in that case made. As is apparent from the following further passage:10
Against that background, the allegations of malice, which are tantamount to an allegation of a grand conspiracy against him by the mental health profession over the past ten years, which is still continuing, are vexatious and an abuse of the Court's process. The reality is that Mr McVeagh is not willing to accept the result of the inquiries that he initiated, and now wishes to reopen the whole issue of the justification for his committal and his detention. It is inescapable that the allegations of malice are introduced at this late stage simply in an attempt to overcome the difficulties that he otherwise faces.
[20] The Court considered therefore that the proceeding ought to be struck-out. However the second passage set out above makes it clear that there were unusual aspects to the factual allegations in that case which took it out of the ordinary class of case which comes before the Court by way of strike-out application.
[21] In the present circumstances, there are no such aberrant aspects to the case which the plaintiff puts forward. Putting it at its highest, the defendants’ position is that there are inconsistencies in the evidence which the defendants would hope to put forward at trial which mean that the stated claims of the plaintiff are implausible. I
am not satisfied that the claim should be struck out for that reason.
9 At 13-14.
10 At 17.
Second ground of application
[22] The defendants have also criticized the way in which the claim is formulated in the fourth amended statement of claim. It is noted that there is no pleading that the promises were made “as a reward”.
[23] I accept that the fourth amended statement of claim still has serious drafting deficiencies. Counsel for the defendant submitted:
25.For executors, who already have the inherent difficulty of representing the deceased, it is not unreasonable to require a clear and succinct pleading of the elements of the claim under s 3 of the Act. Such a pleading is necessary to enable the defendants to know the claim put against the estate and to sensibly prepare for trial with minimal expense to the beneficiary of the estate. The pleading in its current form is confused and likely to prejudice the defendant’s preparation for trial.
[24] Such a statement by the defendants is justified. On the other hand, it needs to be borne in mind that the plaintiff is self-represented. I accept that the obligations to file only pleadings which meet the requirements of the High Court Rules applies just as much to self-represented litigants as it does to those who have skilled counsel representing them. Unless the pleadings meet a certain minimum standard, they should be removed from the Court file. The statement of claim which the plaintiff has filed in its current iteration comes very close to justifying a strike-out order pursuant to r 15.1. Given that this is the fourth attempt by the plaintiff/her advisors to set out what her claim consists of, there is no realistic prospect that any advantage would flow from staying the proceeding until a further statement of claim is filed. The Court, therefore, is again required to determine whether to strike-out the statement of claim.
[25] My conclusions are that with difficulty, it is possible to understand what the elements of the plaintiff’s claim are. Because of the disorganised nature of the document, it is not easy to follow. As well, the references to irrelevant matters will impede the preparation for trial and the trial itself and are likely to add to the time that the matter will take to be heard. In this context, the requirement of r 15.1(b) is satisfied in that the statement of claim is likely to cause prejudice or delay. However it is a matter of discretion whether an order ought to be made. The extent of the
prejudice in the delay are relevant factors. In my view, the statement of claim is not so fundamentally deficient that a strike-out order, which would preclude the plaintiff from having access to the Court to have her claim decided, ought to be made. I do not consider that a partial strike-out order removing sections of the statement of claim ought to be granted. The parts of the statement of claim which the defendants allege are not relevant to the testamentary promise may in fact be intended to be relied upon by the plaintiff during trial.
Costs
[26] The defendants seek costs in relation to the hearing that took place in March
2014. Given that the defendants were the successful party on that occasion, I consider that, pursuant to r 14.2(a), the plaintiff should pay the costs of that hearing on a 2B basis.
[27] While the defendants have not been successful in the current application, in my view it was wholly justified for them to bring the application. The plaintiff has narrowly escaped the making of a strike-out order, notwithstanding that the statement of claim still does not comply with the rules of Court. The plaintiff has escaped a strike-out order on essentially discretionary grounds that have regard to her status as a self-represented litigant and because the document, although poorly written, still sets out in its totality what the nature of the plaintiff’s claim is. At the same time, the costs and delays which are being incurred by the defendants are plainly a consequence of the sub-standard drafting of the statement of claim. In those circumstances, my view is that, exceptionally, the Court ought to make an order for payment of costs in favour of the defendants and there will be an order that the plaintiff is to pay to the defendants costs on a 2B basis relating to the interlocutory application dated 25 July 2014 and the preparation for hearing and hearing thereof.
Other matters
[28] Counsel for the defendant advises that the defendants would be seeking an order for security for costs if the application to strike out failed. Any such
application is to be filed and served within 21 days. I shall deal with any application for security for costs at the next case management conference in this matter. The Registrar is to allocate a further case management conference before me at the first available date in the second quarter of 2015.
Conclusion
[29] The defendants’ application for a strike-out proceeding is dismissed.
[30] Although the defendants are not successful, the plaintiff has escaped the making of a strike-out order on discretionary grounds. In light of the costs and delays which are being incurred by the defendants, plainly as a consequence of the plaintiff’s poor pleading, an order for payment of costs in favour of the defendants is
made.
J.P. Doogue
Associate Judge
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