Page v Clapham - [2022] NZHC 2633

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 Plaintiff

AND

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…

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 Page v Clapham

Details

AGLC: Page v Clapham [2022] NZHC 2633
Case: [2022] NZHC 2633
Decision Date: 17 October 2022

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over by Associate Judge Andrew, considered an interlocutory application in the case of Page v Clapham. Simon David Page, the grandson of the deceased David Barry Clapham, brought an application under the Family Protection Act 1955, claiming that his grandfather failed to provide him with proper maintenance and support by not including him in his will. The defendant, Patricia Miriam Clapham, sought an order for particular discovery under the High Court Rules 2016, seeking documents related to Simon’s company, Rockfield Therapeutics Ltd. The court had to determine if the requested documents were relevant and important to the proceedings.

The key issue before the court was whether the documents concerning the projected earnings of Rockfield Therapeutics Ltd were relevant and material to the case. Patricia argued that the documents were necessary to understand Simon’s financial position, both at the time the will was made and for assessing any breach of moral duty and potential relief. Simon, on the other hand, contended that the documents were irrelevant as they represented hypothetical future earnings of a business venture that could not proceed as planned. Simon had already provided substantial evidence of his income and asset position through his and his wife's affidavits.

The court found that the documents sought were only of marginal relevance and not of sufficient importance to justify an order for discovery. The court considered the explanation provided by Simon’s solicitors, stating that the documents were outdated projections due to the impact of COVID-19 on the market. The court accepted that the documents were outdated and thus of little relevance. Instead, the court directed Simon to file an updating affidavit on his financial position before the trial in June 2024.

The court dismissed Patricia’s application for particular discovery and directed both parties to file updating affidavits regarding their income and asset positions by 1 May 2024. The court also indicated that Simon, having succeeded in the application, was entitled to costs on a 2B basis. If the parties could not agree on the costs, they were to file and serve memoranda within 14 days.

Orders