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Peguero v Jess

Peguero v Jess

Case [2019] NZHC 3188 4 December 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2615

[2019] NZHC 3188

BETWEEN
RAEWYN ELIZABETH PEGUERO, ALISTAIR VAN SCHALKWYK as

executors of the Estate of George William Emil Henry
Plaintiffs

AND

ULRIKE ELISABETH JOHANNA JESS

First Defendant

CHAIRE CHRISTINE ENDEAN and WILLIAM ARTHUR ENDEAN

Second Defendants

Hearing: 4 November 2019

Appearances:

K Davenport QC and J Nedeljkov for Plaintiffs P Rice for first Defendant

No appearance by or on behalf of the Second Defendants

Judgment:

4 December 2019

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment is delivered by me on 4 December 2019 at 4.30pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Counsel/Solicitors:
Kate Davenport QC, Auckland
J Nedeljkov, Barrister, Auckland
ASCO Legal Limited, Howick, Auckland P Rice, Barrister, Auckland
Parshotam Lawyers, Mt Roskill, Auckland

PEGUERO v JESS [2019] NZHC [3188] [4 December 2019]

[1] This is an application by the plaintiffs for particular discovery of the first defendant’s bank accounts. Some bank statements have been provided, but there are redactions. No statements have been provided for some periods. The plaintiffs want discovery of all (unredacted) statements for the period from 2010 to December 2017.

Background

[2] The plaintiffs are the executors in the estate of the late George William Emil Henry (the deceased). The deceased died at the age of 96 on or about 6 August 2018.

[3] The first defendant, Ulrike Jess, is a businesswoman who the plaintiffs say befriended the deceased from about 2010.

[4] The plaintiffs allege, and Ms Jess does not dispute, that in the course of the friendship the deceased transferred assets to Ms Jess for which she gave no (or less than market) consideration. First, in mid-July 2014, the deceased transferred his house at Falstaff Place, Auckland (the home) to Ms Jess for a stated consideration that was substantially below market value, on the basis that the deceased would have the right to occupy the home for the rest of his life. Ms Jess paid no money to acquire the home
— she provided an Acknowledgement of Debt for the full purchase price, but that Acknowledgement of Debt was almost immediately extinguished by a Deed of Extinction executed by the deceased on 22 July 2014.

[5] In addition, it is accepted that the deceased paid significant amounts of money to Ms Jess during his lifetime. It is common ground that the deceased paid Ms Jess
$154,604.03 by cheque, and the plaintiffs say that Ms Jess has admitted that there were some (unquantified) additional sums of money paid in cash. The plaintiffs say that the total cash sum paid by the deceased to Ms Jess is unknown, as the book in which the deceased recorded the cash payments has been misplaced. Ms Jess says that she has no knowledge of this book, and she denies that she ever received cash payments from the deceased (as opposed to cheques made out to “cash”).

[6] Following the transaction relating…

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 Peguero v Jess

Details

AGLC: Peguero v Jess [2019] NZHC 3188
Case: [2019] NZHC 3188
Decision Date: 4 December 2019

CaseChat Overview and Summary

The plaintiffs in this case, Raewyn Elizabeth Peguero and Alistair Van Schalkwyk, as executors of the Estate of George William Emil Henry, sought particular discovery of Ulrike Elisabeth Johanna Jess's bank accounts from 2010 to December 2017. The plaintiffs alleged that Ms Jess exerted undue influence on the deceased and took unconscionable advantage of him, and sought the discovery to support their claims. Ms Jess opposed the application, arguing that the order sought was unnecessarily wide, and that she had already disclosed the relevant bank statements showing deposits from the deceased. The Court had to decide whether the plaintiffs had made out a case for particular discovery under r 8.19 of the High Court Rules 2016.

The Court found that the plaintiffs had not produced sufficient evidence to justify looking beyond Ms Jess's sworn affidavits and directing her to disclose all of the bank statements in unredacted form. The majority of the entries in the bank statements would likely be irrelevant, and discovery of those items would not advance either party's case in the proceeding. Furthermore, the Court found no basis to disregard Ms Jess's sworn evidence that she had been through her bank statements for the years 2010 to 2017 and had listed all pages showing deposits of cheques from the deceased. The Court also noted that any cheques received from the deceased that were made out to "cash" and/or were not marked "not transferable", were presumably cashed or otherwise negotiated by Ms Jess. There was no particular reason to believe those cheques were paid into Ms Jess's bank account and (dishonestly) not discovered by her.

However, the Court did find that the plaintiffs had made out a case for particular discovery in respect of the payment and repayment of the $20,000 relating to the acquisition of a new car for Ms Jess. The Court ordered Ms Jess to file and serve a further supplementary affidavit stating whether she has in her control bank statement entries relating to the payment and repayment of the $20,000. If and to the extent that she has such document(s) in her control, copies are to be made available to the plaintiffs at the same time as the further supplementary affidavit is served.

In conclusion, the Court dismissed the plaintiffs' application for particular discovery, except in respect of the payment and repayment of the $20,000 relating to the car. The Court reserved costs on the application, finding that Ms Jess had been substantially successful on the application, subject only to the order relating to the $20,000 payment and repayment.

Orders