Murray v Murray
[2021] NZHC 2257
•30 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000684
[2021] NZHC 2257
BETWEEN TANIA MAREE MURRAY
Plaintiff
AND
SANDRA JOANNE MURRAY
First Defendant
STEPHEN JAMES MURRAY
Second DefendantDANIEL JON MURRAY
Third Defendant
Hearing: 17 June 2021 Appearances:
S W M Piggin for the Plaintiff / Respondent
P A Fuscic and K Thompson for the First and Second Defendants / Applicants
P J Stevenson for the Third Defendant / RespondentJudgment:
30 August 2021
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 30 August 2021 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
McVeagh Fleming, Auckland Vlatkovich McGowan, Auckland
P Stevenson, Auckland
MURRAY v MURRAY [2021] NZHC 2257 [30 August 2021]
Introduction
[1] When Ronald Murray died on 4 July 2019 he left three children: Tania Murray, Sandra Murray, and Stephen Murray; and five grandchildren, including Daniel Murray, son of Tania.1 This case is about Ronald’s final will executed in 2018, by which he left the residue of his estate equally to Tania, Sandra, Stephen and Daniel. It is about whether Tania and Daniel exerted undue influence on Ronald in the final two years of his life, coercing him to make the will, execute an enduring power of attorney in Tania’s favour, and recklessly spend money he had from the sale of his home on each of them.
[2] The proceedings began with the plaintiff, Tania, filing proceedings for an order granting probate in solemn form to her as the executor and trustee appointed by Ronald under his final will. This came after the first defendant, Sandra, lodged a caveat against grant of probate for administration of the estate.
[3] The scope of the proceedings expanded when Sandra and the second defendant, Stephen, filed their statement of defence and counterclaim. By way of affirmative defence, they claim that Ronald lacked testamentary capacity when he made the 2018 will due to the many medical disorders he was plagued with, most seriously lung cancer that eventually spread to his brain and adrenal glands and caused his death.
[4] As a second affirmative defence, they claim that Ronald did not know and approve the contents of the 2018 will.
[5] Their third and final affirmative defence is that Tania and/or Daniel exerted undue influence over Ronald in relation to the 2018 will. They claim that Ronald was physically and mentally vulnerable, and that Tania and Daniel took advantage of this vulnerability and encouraged or pressured Ronald to change his earlier will by which he appointed Stephen executor and left the residue of his estate to his three children only, to the arrangement under the 2018 will, which included Daniel. Sandra and
1 As the parties share the same surname I use their first names in this judgment. I mean no disrespect by doing so.
Stephen seek a declaration that the 2018 will is invalid, and the last valid will is dated 19 February 1999 and codicil dated 15 May 2006.
[6] Their counterclaim against Tania and Daniel focuses on the time from around late 2017 to August / September 2019, shortly after Ronald died. They claim that in around late 2017 Tania began pressuring Ronald to sell his house at Whangaparāoa, which he did in July 2018. Ronald’s half share of the proceeds from the sale of his Whangaparāoa property, being $351,097.80, was deposited into his bank account. When Ronald’s bank account was closed in September 2019, the balance was
$246,381.40.
[7] In their first cause of action, Sandra and Stephen claim that Tania and Daniel exerted undue influence on Ronald, pressuring him to execute an enduring power of attorney in favour of Tania, and to pay for purchases from the funds in his bank account, and by using his credit card and Farmers finance account.
[8]In their second cause of action, they claim that Tania and Daniel wrongly spent
$7,320.91 from Ronald’s bank account after Ronald had died.
[9] In their third cause of action, Sandra and Stephen claim that Tania and Daniel breached fiduciary duties they owed Ronald, because of Tania’s relationship to Ronald as his attorney and their relationship to him as caregivers. They also claim, as a fourth cause of action, that the transactions on Ronald’s account for the benefit of Tania and Daniel before and after his death were unconscionable and, as a fifth cause of action, amounted to conversion.
[10] For all five causes of action they seek a declaration that the power of attorney is void, an audit of all Ronald’s accounts, and judgment against Tania and Daniel for the amounts allegedly misapplied. They bring these claims as a derivative action for Ronald’s estate claiming there are special circumstances that give them standing.2 The question of their standing is not an issue in this interlocutory application.
2 Nawisielski v Nawisielski [2014] NZHC 2039, [2014] NZFLR 973 at [18].
[11] Finally, as a sixth cause of action they seek an order requiring Tania and Daniel to hand over Ronald’s brass horse collection, the memoirs he had gifted to Sandra and Stephen, and the ashes of his second wife, Sue.
[12]Tania and Daniel deny Sarah and Stephen’s claims.
[13] Over several months the lawyers for Tania, Sandra and Stephen, and Daniel, negotiated a consent order for tailored discovery. That order, made by Toogood J on 1 March 2021, involved 46 categories of documents. These are set out in an appendix to this judgment.
[14] There were 16 categories of documents sought by Sandra and Stephen that Tania or Daniel did not agree to provide. Toogood J, when making the consent order for tailored discovery in respect of the agreed categories, reserved for Sandra and Stephen the ability to apply for an order for discovery in respect of the disputed documents. Sandra and Stephen now apply for an order for tailored discovery in respect of these remaining categories.
Legal principles
[15] The principles governing tailored discovery are well understood and not disputed in this case. Tailored discovery is undertaken under r 8.8 of the High Court Rules 2016 and must be ordered when the interests of justice require an order involving more, or less, discovery than standard discovery would involve. Rule 8.9 sets out certain types of proceedings in which it is to be presumed, unless the Judge is satisfied to the contrary, that the interests of justice require tailored discovery. These include proceedings where the costs of standard discovery would be disproportionately high in comparison with the matters at issue; where the sum or assets in issue exceed $2,500,000; where there are allegations of fraud or dishonesty; or where the parties agree that there should be tailored discovery.
[16] The relevant principles were summarised by Asher J in Commerce Commission v Cathay Pacific Airways:3
(a)The concept of proportionality is central to tailored discovery. It is relevant in determining whether tailored discovery is appropriate; whether the categories are reasonable and proportionate; what constitutes a reasonable search; and methods and strategies for locating documents.4
(b)Discovery categories will reflect the issues and will only be ordered for discovery of documents that are relevant to those issues. Except in exceptional circumstances, these issues will be discernible from a review of the pleadings.5
(c)Discovery orders that are essentially of a “fishing” nature are not part of tailored discovery. Orders will not be granted where the categories do not relate to a pleaded relevant issue, but rather a non-pleaded issue which might be pleaded should discovery reveal documents that support such a pleading.6
[17] The rules do not specify the scope of tailored discovery, namely whether it is documents that adversely affect a party’s case (standard discovery), something narrower, or something broader. Relevance to an issue in the proceeding is the starting point.7 Usually tailored discovery will be narrower in scope than standard discovery. But parties can choose to formulate all or some categories with a wider test of relevance in mind (such as the Peruvian Guano test).8
3 Commerce Commission v Cathay Pacific Airways [2012] NZHC 726, applied by Associate Judge Sargisson in Commons v Commons [2019] NZHC 557 and Associate Judge Johnston in Farrelly v Wellington City Council [2019] NZHC 1875.
4 Cathay Pacific, above n 3, at [12].
5 Cathay Pacific, above n 3, at [13].
6 Cathay Pacific, above n 3, at [13].
7 ASB Bank Ltd v Commissioner of Inland Revenue [2014] NZHC 2184, (2014) 26 NZTC 21-098 at [7].
8 Pyne Gould Corp Ltd v Bath Street Capital Ltd [2020] NZHC 1247 at [16].
[18] The centrality of proportionality to discovery is illustrated by the procedure parties are required to follow to determine whether standard or tailored discovery is appropriate; and then, if tailored discovery, to determine the categories. Rule 8.11 and cl 1(d) of the discovery checklist require parties to jointly carry out a cost benefit analysis to assess whether the estimated cost of carrying out standard discovery is proportionate to the sums, or the value of the rights, at issue in the proceeding. If not, the parties should seek a tailored discovery order. Clause 3(2)(a)(i) of the discovery checklist requires parties to endeavour to agree a proposal for tailored discovery that seeks to limit discovery to what is reasonable and proportionate.
[19] In Commerce Commission v Cathay Pacific Airways Asher J also observed that, when deciding whether to order discovery under a particular category, it is necessary to measure the likely return of relevant documents against the cost of the exercise. If highly relevant documents may be revealed, then a greater cost can be justified.9
[20] I will now consider each category of disputed documents to determine whether they are relevant to an issue in this case and whether requiring their discovery would be reasonable and proportionate. I have organised the disputed categories into three groups: documents concerning the assets and liabilities of Ronald; documents said to be relevant to the credibility, character, veracity and propensity of Tania and Daniel; and their financial and other records.
[21] There is a fourth category of documents that Tania says she mistakenly agreed to form part of the consent order. I will decide whether the consent order should be amended.
Documents concerning the assets and liabilities of Ronald
[22] In their application for tailored discovery orders, Sandra and Stephen sought from Tania “the assets and liabilities of the deceased as at the date of his last Will and as at the date of his death”. Mr Piggin, for Tania, objected to the notion of “discovery” of assets and liabilities, as opposed to duties of disclosure to beneficiaries that Tania
9 Cathay Pacific, above n 3, at [18] and [21].
might have if probate is granted to her as executor of Ronald’s estate. In any case, Tania deposes that Ronald’s only asset at the time of his death was the cash in his bank account, for which bank statements have already been provided to the applicants. Further, Tania had already agreed to request the conveyancing file from the solicitors who acted on the sale of Ronald’s house.
[23] In terms of estate liabilities, Tania had already agreed to provide all Farmers card statements. The only other potential liabilities at the time of Ronald’s death were amounts owing on household utility bills. Mr Piggin maintains that these documents are irrelevant and/or their discovery disproportionate.
[24] At the hearing, Mr Fuscic clarified that the only remaining documents Sandra and Stephen sought in this category were unpaid household bills at the date of Ronald’s death. While not accepting their relevance, or that it was proportionate to require their discovery, Mr Piggin agreed at the hearing that any unpaid bills at the date of Ronald’s death in the possession or control of Tania would be discovered.
Documents showing the credibility, character, veracity and propensity of Tania and Daniel
[25] The submitted relevance of these documents is that they will show something of Tania and/or Daniel’s character and personality, and that character and personality is relevant to claims of undue influence, unconscionability, breach of fiduciary duty and conversion in the context of elder abuse. It is contended that the documents will provide admissible evidence of veracity and/or propensity under the Evidence Act 2006.
[26] My approach to assessing the application for a discovery order for these documents is informed by the following:
(a)Discovery applications directed exclusively at witness credibility are impermissible.10 They are often speculative and oppressive and need to be kept firmly in check.11
(b)An order requiring discovery of such documents will only be made if credibility, character, honesty/veracity are in issue in the proceeding, according to the pleadings.
(c)Evidence must be substantially helpful in assessing a person’s veracity to be admissible.12
(d)In addition to the documents being relevant to an issue in the proceeding, it must be reasonable and proportionate to order their discovery.
(e)The concept of proportionality involves weighing the degree of relevance and likely usefulness of the documents in question, against the cost and inconvenience involved in their discovery. To that I would add, in this context, the degree of intrusion into the privacy of the subject.
[27] As to the issues in the case, regrettably the parties had not agreed a statement of issues for the hearing. Further, Mr Fuscic did not specify the issues involved in the claims of undue influence and unconscionability to which the documents are said to be relevant, other than to repeat that they are relevant to the credibility, character, veracity and propensity of Tania and Daniel.
10 Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665 (CA); Favor Easy Management Ltd v Wu [Practice Note] [2010] EWCA Civ 1630, [2011] 1 WLR 1803; and George Ballantine & Son Ltd v FER Dixon & Son Ltd [1974] 1 WLR 1125 (Ch D). In a New Zealand context, see West Harbour Holdings Ltd (in liq) v Tamihere [2014] NZHC 716.
11 Robert Jones Holdings Ltd v McCullagh [2016] NZHC 2529 at [55].
12 Evidence Act 2006, s 37(1).
[28] Therefore, I borrow from the High Court judgment of Kós J in Public Trust v Vernon, a case also involving the depletion of the deceased’s bank account in the final stages of their life. On the claim of undue influence in that case, Kós J said:13
There was no real controversy as to the applicable legal principles. In this country the principles set forth in the speech of Lord Nicholls in Royal Bank of Scotland v Etridge (No 2)14 were approved by the Court of Appeal in Hogan v Commercial Factors Ltd.15 The plaintiff must demonstrate:16
(a)the existence of a relationship of influence;
(b)the exercise of that influence;
(c)that the influence was undue — i.e. unfair, unacceptable or unconscionable;
(d)that the impugned transactions were a result of that undue influence; and
(e)that Equity's conscience is exercised as a result.
A probative short-cut exists however where (a) is established, and a “transaction that calls for explanation” is also demonstrated.17 In such a case the burden passes to the defendant to rebut the inference, indeed presumption, arising of undue influence.18
[29]In relation to allegations of unconscionable conduct, Kós J said:19
But it is important to note that while undue influence and unconscionability are closely related doctrines, their inclusion focus differs.20 The focus of undue influence is on the circumstances and sufficiency of consent to a transaction. Unconscionability, on the other hand, inquires more broadly into the existence of disadvantage or disability, and whether a stronger party has taken advantage unconscionably of that disadvantage or disability.
[30] To establish a breach of fiduciary duty, one must first show that the parties were in a fiduciary relationship, and second, determine the scope of the fiduciary obligations owed. Here it is pleaded that Tania and Ronald were in a fiduciary relationship upon Ronald signing Enduring Powers of Attorney in Tania’s favour; and
13 Public Trust v Vernon [2015] NZHC 1928 at [121]–[122]. Statement of principles upheld on appeal, Vernon v Public Trust [2016] NZCA 388, [2016] NZAR 1375 at [27]–[28].
14 Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 793 (HL) at [9]–[12].
15 Hogan v Commercial Factors Ltd [2006] 3 NZLR 618 (CA) at [40]–[41].
16 Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Wellington, 2009) at [22.1.2]. See also Green v Green [2015] NZHC 1218 at [100].
17 Royal Bank of Scotland v Etridge (No 2), above n 14, at [14].
18 Butler, above n 16, at [22.5.2].
19 Public Trust v Vernon, above n 13, at [116].
20 Butler, above n 16, at [22.4.5(2)] and [23.1.1].
that Tania and Daniel were also in a fiduciary relationship with Ronald upon becoming Ronald’s caregivers. The fiduciary relationship pleaded in Public Trust v Vernon relied on the same grounds. Kós J there accepted that a donee under a power of attorney owes fiduciary duties to the donor.21 Further, that where there is trust, reliance and vulnerability in a family caregiver relationship, Equity may recognise the relationship as a fiduciary one.22 As to scope, Kós J described the fiduciary duties owed by a donee under a power of attorney as to:23
…act with absolute openness and fairness to the donor, exercise reasonable care (including acting with reasonable prudence in managing the donor’s financial affairs), keep personal and fiduciary property separate, and avoid conflict of interest and duty to the donor.
[31]Finally, the tort of conversion arises where there is:24
…an unauthorised and wrongful act by the defendant which involves deliberately dealing with goods in a manner inconsistent with the plaintiff’s rights to possession.
[32]I now turn to each disputed category.
Bank accounts of the late Sylvia Murray
[33] Sylvia Murray was Ronald’s first wife, and the mother of Sandra, Stephen and Tania. Sylvia died in 1999. Stephen and Sandra claim, in their counterclaim, that Tania, who had access to Sylvia’s bank card, depleted her estate and took her pounamu necklace, wedding and engagement rings, and coin collection. As such, it is contended that the bank statements will cast doubt on Tania’s integrity and honesty and show a propensity towards the kind of conduct alleged by Sandra and Stephen in their counterclaim.
21 Public Trust v Vernon, above n 13, at [133]. Affirmed on appeal, Vernon v Public Trust [2016] NZCA 388, [2016] NZAR 1375 at [34]–[42].
22 Public Trust v Vernon, above n 13, at [134]. See also [136].
23 At [133].
24 Singh v Patel [2021] NZCA 242 at [22].
[34] In her notice of opposition (confirmed by affidavit) Tania explains her reason for objecting to discovery of this category of documents. Namely, she does not hold any bank statements for her late mother Sylvia going back 20 years; and she does not expect the relevant banks to hold such statements going back 20 years. Further, Mr Piggin confirmed at the hearing that the estate solicitors for the late Sylvia Murray had been contacted and confirmed that the estate file was destroyed long ago.
[35] I do not consider that it would be reasonable or proportionate to order Tania to undertake a further search for these bank statements. At best, they will show her late mother’s bank account declining at an unexpected rate before her death, but without more, any inferences to be drawn from that would be limited.
[36] This proceeding concerns Tania’s actions with respect to Ronald’s estate, not Sylvia’s. The issues for determination are set out above. They will be resolved on the facts: evidence on the nature of the relationship between Tania, Daniel and Ronald; the circumstances surrounding his execution of his final will and the power of attorney; the change in Ronald’s behaviour and spending pattern over the period it is said that Tania and Daniel were influencing him; and the nature of the transactions in question. It is likely, given the scale and nature of the transactions, that the probative short-cut will apply, and the burden will pass to Tania and Daniel to rebut the presumption arising of undue influence. The unconscionability claim will also be resolved according to similar facts, with a focus on Ronald’s disadvantage because of his mental and physical vulnerability. I do not accept that the bank records sought will provide relevant or substantially useful evidence on the issues in this case.
[37] Further, the records in question are 20 years old. Tania has attested to the fact that she does not hold them herself. Considering the low probative value of these documents in terms of the issues to be determined in this proceeding, I consider that it would be unreasonable and disproportionate to require her to conduct a further search.
Documents relating to Daniel’s school attendance, potential criminal activity, and drug use
[38]Sandra and Stephen seek from both Tania and Daniel the following documents:
(a)documents concerning Daniel’s expulsion from school, attendance at borstal school, involvement with the Police;
(b)Daniel’s conviction record (if any) for drugs and/or violence;
(c)any Police statements or reports on Daniel;
(d)photos and/or messages on mobile phone or social media, including Daniel’s Facebook Messenger, concerning Daniel providing marijuana to Ronald; and
(e)any document concerning Daniel’s drug use.
[39] Mr Fuscic submits that these documents are relevant to the character, personality, probity and integrity of Daniel. He again relies on ss 37 and 40 of the Evidence Act 2006 to say that the documents would be admissible evidence of veracity and propensity under these provisions. He submits that evidence of Daniel’s drug use is relevant to the allegation that Daniel gave marijuana to Ronald. It also shows that Daniel is a forceful and domineering individual.
[40] To support his submissions, Mr Fuscic sought to have admitted into evidence an affidavit of Nicole Cherie Murray sworn on 14 June 2021. Nicole is Daniel’s cousin. The affidavit appears to exhibit a record of text messages between Nicole and Daniel in 2013 and Facebook Messenger messages between them in 2014. Mr Fuscic seeks that the evidence be admitted as evidence of Daniel’s overbearing character, and efforts to provide Ronald and possibly other family members with marijuana.
[41] I find that the affidavit is not admissible for the purposes of this interlocutory hearing. It was filed late, on the day of the hearing. Daniel has had no opportunity to reply. It contains hearsay evidence. In any case, I find it of no value. Daniel’s
character is not in issue in this interlocutory hearing. The content of the messages exhibited to the affidavit are irrelevant to the issue I need to decide, namely whether the records Sandra and Stephen seek in this category are relevant to the issues in dispute in the substantive proceeding.
[42] Returning to the records in question, it is claimed that they will show that Daniel has had a troubled past, has had encounters with the Police, is violent, uses drugs and provided Ronald with marijuana on one occasion. If so, is such evidence relevant to an issue in the proceeding? Care needs to be taken here, because, as mentioned, discovery solely directed at attacking a witness’s credibility is not permitted. But Mr Fuscic’s submission is that personality and character is in issue in claims of undue influence and unconscionability in the context of elder abuse. I understand Mr Fuscic to be saying that evidence of Daniel’s character is relevant to the claim that Daniel pressured and coerced Ronald to spend his savings on Daniel and Tania, and that Daniel continued to spend his money after his death. It is said that evidence of a domineering, even violent, personality is relevant to the claim that Daniel unconscionably took advantage of the power imbalance between him and the aging Ronald for his own advantage.
[43] At first, this submission has appeal. But on returning to the issues for determination at trial set out at [28] to [31], it loses considerable force. Again, these issues will be resolved on the facts: the relationship between Tania, Daniel and Ronald; the change in Ronald’s behaviour and spending pattern over the period it is said that Tania and Daniel were influencing him; the nature of the transactions in question and whether there is a legitimate explanation for them. The unconscionability claim will also be resolved according to similar facts, with a focus on Ronald’s disadvantage because of his mental and physical vulnerability.
[44] Sandra and Stephen’s request for Daniel’s historical school and Police records is speculative. But even if the records were to show what they anticipate, the information is not sufficiently relevant to determining the issues described. The fact that Daniel (might have) had a troubled past, had encounters with the Police or have violent tendencies will not be substantially helpful in determining these issues. Furthermore, it would be unreasonable and disproportionate to order their discovery,
weighing the degree of intrusion into Daniel’s privacy against the likely relevance and value of the documents to the issues in this case.
[45] Turning to documents evidencing Daniel’s drug use. Whether Daniel uses drugs is not an issue for determination in this proceeding. I understand Mr Fuscic’s submission to be that evidence confirming that Daniel provided Ronald with marijuana is evidence of Daniel’s overbearing personality. Yet Daniel has admitted that he provided Ronald with marijuana, so that is not in dispute. Evidence of his drug use beyond that has no relevance to an issue in the case. Accordingly, I reject the request for discovery of this group of documents.
WINZ disclosures
[46] The applicants seek Tania and Daniel’s disclosure of their financial position to WINZ over the period September 2018 to August 2019. Mr Fuscic submits that if these documents show that Tania and/or Daniel did not disclose the new source of income they had, namely Ronald’s money, these documents will provide evidence of their dishonesty.
[47] I am not persuaded that an order for discovery of these documents is warranted. The request is highly speculative. Further, even if the documents show what the applicants speculate, at best this establishes that Tania and Daniel were less than open with WINZ about their sources of income. But Tania and Daniel’s honesty when dealing with authorities is not an issue in dispute in this case and it is casting the net too wide to say that evidence of any dishonesty is relevant. Here I am mindful that discovery applications aimed solely at discrediting a witness are impermissible.
[48] To justify an order for discovery, the documents need to be relevant to the issues for determination in the claims of undue influence, unconscionability, breach of fiduciary duty and so on. Mr Fuscic could not say how these declarations would do that, other than to reiterate that they are relevant to the honesty of Tania and Daniel. That is somewhat circular. I am not satisfied that the records requested will provide relevant evidence that will advance the determination of the issues in the case in a material way. Further, requiring their discovery involves an unreasonable intrusion
into Tania and Daniel’s privacy. Weighing these factors up, I conclude that ordering their discovery would not be reasonable and proportionate.
Tania and Daniel’s financial and other records
Tania and Daniel’s bank statements
[49] Sandra and Stephen seek from each of Tania and Daniel discovery of statements of their respective bank accounts during the period July 2017 to August 2019. Ronald’s bank statements were disclosed before the proceedings were issued. There is no allegation that Tania and Daniel were coercing Ronald to transfer money into their bank accounts, or that they were coercing him to make cash withdrawals which they were then depositing into their accounts. But the bank statements are sought to reveal whether there was a change in the pattern of Tania and Daniel’s expenditure over the period, when Ronald was spending unusual amounts. Until September 2018 when Ronald lived alone in his mortgage-free home, his spending averaged around $1,770 per month.25 In the final 10 months of his life his spending increased to an average of around $11,800 per month.26
[50] Mr Fuscic relies on Public Trust v Vernon to support his submission that the bank statements should be discovered. Vernon concerned the spending of an elderly man’s money by his son. The son made total withdrawals from his father’s bank accounts of $437,577, in a combination of: cash and purchases of goods and services; cheques made out to him and his wife; and internet banking transfers to the accounts of him and his wife.27 Mr Fuscic highlights Kós J’s comment in the High Court:28
[The father’s] ANZ 00 account for the period 27 February to 27 March 2006 is instructive. Up to…the date of [his wife’s] death – withdrawals are generally by cheque. There are just two eftpos payments, one of which is to the family doctor. Four days after [his wife’s] death a number of eftpos transactions start appearing. They are either at Woolworths Tawa (where [his son and daughter-in-law] live) or at a Mill liquor outlet. The pattern then continues. There are some cheques paid, but most commonly they are eftpos payments. The eftpos card is being used to pay for groceries, liquor and petrol for the most part. Regrettably we do not have evidence of the [son and daughter-in-law]’s own cheque account during the same period to see
25 Counterclaim against plaintiff and third defendant, dated 25 September 2020 at [130].
26 Counterclaim against plaintiff and third defendant, dated 25 September 2020 at [131].
27 Vernon v Public Trust [2016] NZCA 388 at [12].
28 Public Trust v Vernon, above n 13, at [57] (emphasis added).
what change in pattern has occurred here. However, [the son] acknowledged he had [the father’s] eftpos card and that he had the pin number for it.
[51] Ms Stevenson, for Daniel, and Mr Piggin, for Tania, submit that Vernon is distinguishable because that case involved alleged transfers of money from the father’s bank account to the accounts of the son and daughter-in-law, whereas here, the allegations relate to Tania and Daniel using Ronald’s bank and finance cards directly. Accordingly, she submits that there is no value in seeing Tania and Daniel’s respective accounts. Ms Stevenson submits that Kós J’s lament as to the lost utility of the son and daughter-in-law’s statements was made only in passing. Mr Piggin adds that Vernon was not a decision on a discovery application.
[52] I agree with these submissions except for the submission that there is no value in seeing Tania and Daniel’s respective accounts. On my interpretation of Kós J’s comment, the value in seeing the son and daughter-in-law’s account was not limited to seeing whether there were corresponding deposits into their accounts following withdrawals from the father’s account. He notes that the son had the father’s eftpos card and knew the PIN number. He made the comment when discussing eftpos and cheque payments for petrol, groceries and liquor. The value in seeing the statements from the son and daughter-in-law’s account might have been in, for example, seeing whether withdrawals from their own accounts for living expenses reduced around the time that the withdrawals for living expenses from their father’s account increased.
[53] For the same reason, I find that the personal bank statements of Tania and Daniel over the period in question are relevant to the issue of whether they were exerting undue pressure on Ronald to make purchases for them on items they would otherwise have bought themselves. I am mindful of the fact that Sandra and Stephen already have considerable information about the nature of the purchases made by Ronald during the relevant period, from individual purchase vouchers they have obtained from the retailers concerned. However, the information in Tania and Daniel’s bank statements will reveal whether their spending correspondingly reduced over the period. This may provide useful information about the degree to which they, rather than Ronald, benefitted from his expenditure. Obtaining copies of bank statements
for this period is not especially onerous and therefore I consider that an order requiring Tania and Daniel to discover these documents is justified.
Daniel’s medical certificate and Job Seeker records
[54] These documents are claimed to be relevant to the pleading that Tania and Daniel were on the unemployment benefit and had been known to the family to often need money and to be asking the family for money.
[55] Daniel has not sworn an affidavit, but Ms Stevenson submitted that he does not deny that he receives WINZ and Job Seeker support. Given this admission, I cannot discern any relevance of his medical certificate or his Job Seeker records to issues in dispute in this proceeding. To order discovery of these documents would be overly intrusive and unreasonable.
Communications regarding Harry Marsh’s interest in Tania’s home
[56] Harry Marsh was Tania’s partner for 22 years, and stepfather to Daniel. In or around May 2018 Harry died. He left five children of his own. The counterclaim pleads that Tania and Harry’s children are engaged through lawyers on the matter of Harry’s estate. Tania owns a half share of her house, and the other house is owned by Harry’s estate. It is alleged in the counterclaim that Tania was upset and angry at not being a beneficiary in Harry’s estate.
[57] The applicants seek discovery of communications between Tania and/or Daniel and Harry Marsh’s children or by their lawyers, concerning any settlement or pay out of Harry Marsh’s interest in Tania’s home. Mr Fuscic submits that these documents are relevant, as they will reveal: whether Tania was under pressure concerning Harry’s interest in her home or needing money in relation to that; what Tania was saying in her or her lawyer’s communications with Harry’s children and their lawyers concerning the house and settling with Harry’s children; and whether she or Daniel were expecting money from Ronald.
[58] This category was included in the consent order of Toogood J dated 1 March 2021 as item 38, but Tania now says that she agreed to discover these documents in error. She has filed an affidavit stating that she was overwhelmed by the exercise of going through all the documents and issues and had not understood what she was consenting to disclose. Mr Piggin wrote to Mr Fuscic on 30 April 2021 advising of Tania’s error. Despite that, Mr Fuscic had the order sealed.
[59] I will first decide whether the consent order should be amended under r 11.10 to remove this category of documents. That rule permits this court to correct an order if it is drawn up so that it does not express what was decided and intended. If yes, I will then assess whether I should order that the documents be discovered as I have done with the other disputed categories.
[60] Sandra and Stephen strongly oppose the documents being removed from the consent order. The consent order was the product of extensive negotiation. Mr Piggin specifically said that he was instructed by Tania to agree to that category. Therefore, Mr Fuscic submits, Tania is bound by it.29 Mr Fuscic submits that Tania has simply changed her mind and a change of mind does not justify an order being amended.
[61] I disagree. The discovery order is a consent order. If Tania did not in fact consent to the discovery of the documents described at item 38 because she made an error, then the order does not reflect the reality. Ideally, Tania would have filed an interlocutory application for correction of the error under r 11.10. However, Mr Piggin alerted Mr Fuscic to the error some time before the order was sealed, affording Mr Fuscic the opportunity to make submissions on the point and he has done so. Further Tania is legally aided. In the interests of expediency, I will accordingly overlook the failure to file an interlocutory application. The Court can correct an accidental slip or omission of its own initiative.30 I am prepared to accept the explanation of Tania in her affidavit at face value. The consent order will be amended and item 38 removed.
29 Affidavit of Kate Laura Thompson sworn 15 June 2021.
30 Rule 11.10(2).
[62] So, I must consider the relevance of this category of documents on the basis that is disputed. I conclude again that these documents are not sufficiently relevant to an issue in dispute. The fact that the counterclaim refers to litigation with Harry’s children regarding Harry’s estate at paragraphs 78 and 79 of the “Background” section, is a long way from establishing relevance to the issues for determination in this case. The category sought is insufficiently relevant, and to order discovery would also be unreasonable and disproportionate.
Result
[63]I make these orders:
(a)by consent, Tania will provide Sandra and Stephen with copies of any unmet household bills of Ronald’s at the time of his death within 20 working days;
(b)the consent order dated 1 March 2021 is varied so that item 38 is deleted from the attached schedule;
(c)Tania and Daniel will provide Sandra and Stephen with copies of their personal bank statements between July 2017 and August 2019 within 20 working days;
(d)the rest of Sandra and Stephen’s application for tailored discovery is dismissed.
[64] As to costs, Sandra and Stephen were unsuccessful in all but one category of documents. They will pay Tania and Daniel and an amount equivalent to 75 per cent of 2B scale costs and disbursements, to be divided equally between Tania and Daniel. Counsel should file a joint memorandum setting out an agreed calculation for the purposes of an order, or separate memoranda if they cannot agree.
[65] There will be a case management conference allocated by the Registry for a date six weeks from now, by which time discovery will be completed. At that conference the Court will look to allocate a judicial settlement conference and to make further directions to take this proceeding through to a trial. The parties are to confer and file a joint memorandum, noting any differences, two working days before the conference, addressing these matters.
Associate Judge Gardiner
Order for tailored discovery of Toogood J, dated 1 March 2021
An order for tailored discovery under r 8.10 made in respect of the following agreed categories of documents and terms:31
1.all of Ronald’s wills and codicils;
2.any document recording Ronald’s testamentary intentions or wishes;
3.the documents held by solicitors on Ronald’s last and prior wills and enduring power of attorney;
7.correspondence by Tania or Daniel addressing Daniel not being a beneficiary in the estate of Harry Marsh.
8.solicitors’ documents relating to the sale of Ronald’s home;
9.real estate agents’ documents and correspondence relating to the sale of Ronald’s home.
10.Ronald’s medical records and communications with his health providers;
11.correspondence between Tania and Daniel concerning Ronald’s health, testamentary intentions, or Ronald seeing a lawyer to make a will and give enduring powers of attorney.
12.correspondence between Tania, Daniel, Stephen or Sandra with Ronald’s health providers.
13.WINZ documents recording Ronald’s health between 2015–2019.
14.any document relating to any (attempted) activation of the power of attorney;
15.any document relating to an attorney acting, intending or attempting to act under Ronald’s power of attorney.
16.Ronald’s ACC records;
17.all communications with Ronald’s bank, ANZ, and Farmers, relating to his accounts between 2015–2019;
18.bank statements for Ronald’s accounts between July 2017–August 2019;
19.all statements in relation to Ronald’s Farmers Finance card between July 2017–August 2019;
20.any document recording the signing authorities, authorised users and PIN numbers of Ronald’s eftpos, visa and Farmers Finance card;
31 Summarised, not quoted.
21.correspondence between any of the parties or Ronald with ANZ and Farmers concerning any use or operation of those accounts or regarding the issue of further cards;
22.any document showing actual goods / services or cash out in respect of any transaction out of the ANZ account or Farmers Finance card accounts between July 2017–August 2019;
23.documents held by third parties in relation to each transaction specified in [22];
24.any document recording a request or approval by Ronald to Tania, Daniel or any other person using his bank or Farmers Finance card or any transactions on them.
25.receipts, statements and invoices for all transactions between September 2018–August 2019, including from a list of 75 specific providers;
31. Ronald’s memoirs and diaries;
34.any document relating to Ronald having a mobile phone;
35.documents recording financial and foodbank assistance received by Tania and/or Daniel after Ronald’s death;
37.any communications on mobile phones or computers from, between or with Tania and Daniel concerning Ronald, his will, the sale of his house, and financial status;
38.any communications between Tania and/ or Daniel and Harry Marsh’s children or their lawyers concerning any settlement or pay out of Harry Marsh’s interest in Tania’s home;
*see [63](b) of this judgment.
39.correspondence from Ronald to any of his children or grandchildren;
40.Christmas cards from Ronald to Tania and/or Daniel and/or Sandra and/or Stephen;
42.any communications to and from Ronald and either or both of Sandra and Stephen from 2017 onwards, down to the date of death, including but not limited to texts, emails, letters and cards;
43.any communications by either or both of Sandra or Stephen to and from Ronald’s bank, WINZ / MSD, Farmers or any other financial institutions with which Ronald held an account or was a client, down to the date of issue of Sandra and Stephen’s proceedings;
44.any family photographs of Ronald held or taken, obtained by either or both of Sandra and Stephen, over the period 2017 down to the date of death;
45.any document in categories 1–26 held or obtained (or which was held or obtained but is no longer held) by either or both of Sandra and Stephen prior to the date of Ronald’s death, or subsequently (excluding documents provided by Vlatkovich & McGowan or on discovery).
46.any document in categories 31, 39 and 40 held or obtained (or which was held or obtained but is no longer held) by either or both of Sandra or Stephen prior to the date of Ronald’s death, or subsequently.
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