Page v Clapham
[2022] NZHC 2633
•17 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000923
[2022] NZHC 2633
UNDER Family Protection Act 1955 IN THE MATTER OF
The estate of DAVID BARRY CLAPHAM
BETWEEN
SIMON DAVID PAGE
First Plaintiff
STEPHEN PAUL DOWNIE CLAPHAM
Second PlaintiffAND
PATRICIA MIRIAM CLAPHAM as
executor and trustee of the estate of DAVID BARRY CLAPHAM
Defendant
Hearing: On the papers Counsel:
M J Allan for First Plaintiff
K E F Morrison and H J Musgrave for Defendant
Judgment:
17 October 2022
JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
This judgment was delivered by Associate Judge Andrew on 17 October 2022 at 2.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date……………………..
PAGE v CLAPHAM [2022] NZHC 2633 [17 October 2022]
Introduction
[1] Simon Page is the grandson of the late David Barry Clapham (“Barry”). Simon claims against Barry’s estate under the Family Protection Act 1955. Simon contends that by making no provision for him in his will, his grandfather, Barry, was in breach of his moral duty to provide Simon with proper maintenance and support.
[2] The parties have filed their affidavit evidence. This includes evidence from Simon and his wife, Jian Li, as to their income and asset position.
[3] In the present interlocutory application, the defendant, Patricia Clapham, in her personal capacity, seeks an order for particular discovery under r 8.19 of the High Court Rules 2016. The documents sought relate to Simon’s company, Rockfield Therapeutics Ltd. They include:
Documents touching or concerning the projected earnings of Rockfield Therapeutics Ltd that have been provided to and/or have been prepared for Callaghan Innovation.
[4] The critical issue I must determine is whether the documents are relevant and of importance to the proceedings.
Factual background
[5] Barry died on 27 February 2020, leaving a will dated 7 June 2019. Under that will, Patricia is the executor of Barry’s estate and a beneficiary. She was Barry’s second wife.
[6]The approximate value of the estate is $5.5 – $6.5m.
[7]Simon seeks provision from his grandfather’s estate on the basis that:
(a)Both of his parents suffered from schizophrenia and were unable to care for him;
(b)His father, David Clapham (Barry’s son), was too unwell to be involved in his care at any stage and he was removed from his mother’s care at
age six and placed into foster care after spending his early years in an unsafe living environment;
(c)Barry was in a financial position to assist but did not do so;
(d)Barry’s late wife’s brother and his wife stepped in to seek custody orders and cared for him at their own expense even though they had limited financial means;
(e)Barry neglected him and made no effort to assist him or contact him; and
(f)By making no provision for him in his will, Barry was in breach of his moral duty to provide him with proper maintenance and support.
[8] Simon is the sole director and shareholder of Rockfield Therapeutics Ltd (“Rockfield”). The company has received a grant of $40,000 from Callaghan Innovation for research and development into a new ready-to-drink dairy product for the food and beverage market. Simon and his wife have previously been involved with a venture exporting and retailing New Zealand dairy products in China.
Relevant legal principles
[9] The Court adopts a four-stage approach in considering an application under r 8.19:1
(a)Are the documents sought relevant, and if so, how important will they be (a criterion described as materiality)?2
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(c)Is discovery proportionate?
Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14]; see also
Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16].
2 Robert Jones Holdings Ltd v McCullagh [2016] NZHC 2529.
(d)Weighing and balancing these matters, in the Court’s discretion applying r 81.9, is an order appropriate?
Analysis and decision
[10] It is not in dispute that in Family Protection Act proceedings evidence of a party’s income and asset position is to be provided. As the Court of Appeal stated in McKenzie v Thomas:3
A party’s income and asset position, whether that party be an appellant or a beneficiary in the position of a respondent, should be provided in all family protection cases. These factors are relevant to whether or not the deceased has breached a moral duty.
[11] Patricia contends that the documents sought concerning the projected earnings of Rockfield are relevant and material for understanding Simon’s financial position both at the time the will was made, for assessing whether there has been a breach of moral duty, and when considering what relief (if any) should be awarded. Patricia says that Simon’s affidavits, setting out the details of the Callaghan Innovation grant and the project for which the grant was made, have acknowledged the relevance of the documents to his circumstances.
[12] Simon disputes the relevance of the documents sought. He says that the further discovery is not relevant because it seeks disclosure of projections (hypothetical future earnings) of a potential business opportunity for which he does not have funding and which cannot now proceed as planned.
[13] It is clear that Simon has already provided comprehensive and significant evidence of his income and asset position. That evidence is contained in his two affidavits and in those of his wife, Jian. There is thus already substantial evidence before the Court providing the necessary context for the assessment of whether there has been a breach of moral duty,4 and what relief (if any) should be awarded.
3 McKenzie v Thomas CA120/02, 14 November 2002 at [14]; cited with approval in Commons v Commons [2020] NZCA 49 at [13].
4 Commons v Commons, above n 3, at [26].
[14] I find that the documents sought are only of marginal relevance to the necessary contextual assessment. The documents are not of sufficient importance or “materiality” to justify the making of an order for discovery. At best, they might contain some peripheral, background context.
[15] In my view, there is no adequate basis for challenging the explanation put forward by Simon’s solicitors in their letter of 7 July 2022, where it is stated:
The documents that you seek are not relevant to the proceeding. The grant money from Callaghan has already been spent. Our client advises that the projections he prepared as part of the grant application were premised on pre- COVID China market inputs. That market has been severely negatively impacted by zero-COVID policy and the outlook for premium foreign-made products entering the market is now extremely tough. There is no longer a viable market for the venture in China and he will need to explore other markets where he currently has no experience.
[16] I accept this explanation is not set out in sworn evidence from Simon. However, this case is similar to Chin v Payne,5 where Associate Judge Lester, in a discovery application, took into account explanations that had been given in letters from solicitors. His Honour held:6
I also take into account that some of Steven’s discovery requests have been explained by Mrs Chin or in letters from her solicitors. Why those explanations are not accepted by Steven other than because of distrust is not explained.
[17] I acknowledge that Simon has stated that Australia has been identified as an alternative market for the new product and that he has engaged an Australian-based intellectual property firm to secure patents. That evidence, however, reinforces Simon’s position that the documents sought are outdated projections and are thus of no real relevance. Rather than order disclosure of documents of such little importance or significance, the better approach is to direct that Simon (as he accepts) is to file an updating affidavit as to his financial position in advance of the trial. The trial is scheduled to commence in June 2024, a significant time away. If by that time Simon’s asset and income position has changed (for example, if he receives actual funding for
5 Chin v Payne [2022] NZHC 1162.
6 At [42].
his venture), then he will be under an obligation to put that information before the Court.7
[18]Patricia’s application for particular discovery is accordingly dismissed.
Result
[19] The application for discovery by the defendant, Patricia Clapham, dated 11 July 2022, is dismissed.
[20] I direct that the parties are to file updating affidavits as to income and asset position by 1 May 2024.
[21] As to costs, I am of the preliminary view that having succeeded, Simon is entitled to costs and on a 2B basis. If agreement cannot be reached, then memoranda (no more than three pages) are to be filed and served within 14 days.
Associate Judge P J Andrew
7 See [35] of submissions of counsel for Simon dated 30 August 2022, where the relevant acknowledgements are made.
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