Pollock v Pollock - [2020] NZHC 648

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV 2016-470-000195

[2020] NZHC 648

BETWEEN NATHAN CHARLES POLLOCK and LETITIA JANE POLLOCK
Plaintiffs

AND

CHERYL LINDA POLLOCK

First Defendant

AND

CHERYL LINDA POLLOCK and PETER

EDMOND WASHER as executors, trustees and administrators of the Estate of R D Pollock

Second Defendants

AND

CHERYL LINDA POLLOCK and CLM

TRUSTEES as trustees of the Judea Valley Trust
Third Defendants

Continued overleaf…

Hearing: 6-24 May 2019

Appearances:

G C McArthur for Letitia Pollock

D Fraundorfer and P Allan for Steven Pollock

P J Morgan QC and M Jepson for Cheryl Pollock S Scott for CLM Trustees
K J Catran for Executors of Estate of R D Pollock S Beattie for children of Cheryl Pollock

Judgment:

25 March 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 25 March 2020 at 2.00pm

Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

POLLOCK v POLLOCK [2020] NZHC 648 [25 March 2020]

Continued from previous page…

CIV 2017-470-000060

BETWEEN
STEPHEN REX POLLOCK

Plaintiff

AND

CHERYL LINDA POLLOCK and PETER

EDMOND WASHER as executors, trustees and administrators of the Estate of R D Pollock
First Defendants

AND

CHERYL LINDA POLLOCK

Second Defendant

AND

CHERYL LINDA POLLOCK and CLM

TRUSTEES as trustees of the Judea Valley Trust

Third Defendants

CIV 2017-470-000026

BETWEEN NATHAN CHARLES POLLOCK and LETITIA JANE POLLOCK
Plaintiffs

AND

CHERYL LINDA POLLOCK and PETER

EDMOND WASHER as executors, trustees and administrators of the Estate of R D Pollock

First Defendants & Ors

Solicitors:
Holland Beckett Law, Tauranga Neverman Bennett, Hamilton Rejthar Stuart Law, Tauranga
Cooney Lees Morgan, Tauranga

TABLE OF CONTENTS

Para No.

Introduction 1

Letitia’s claims 18

First proceeding – Family Protection Act 1955 18
Second proceeding – Trustee Act 1956 and Administration Act 1969 19

Steven’s claims 22

Order under Family Protection Act – first cause of action 23

Order under Law Reform (Testamentary Promises) Act – second cause of action

Remedial constructive trust because of undue influence – third cause of action

Unjust enrichment – fourth cause of action 27
Breach of fiduciary duty – fifth cause of action 29

Issues in the proceeding 31

Rex Pollock’s life and career and the arrangements he made for his family 33

First Pollock family formed 33

Todd and Pollock formed 34

Pauline found to have schizophrenia; Steven and Nathan start at Todd and
Pollock  36
JVT settled; Rex and Pauline settle relationship property; Rex makes will       40
Rex and Cheryl start a relationship, marry and make new wills  43
Letitia has issues at home; starts work at Todd and Pollock  46
Steven leaves Todd and Pollock  49
Rex and Cheryl set up mirror trusts  51
Steven returns to Todd and Pollock then leaves; Wayne starts at Todd and
Pollock  54
Todd and Pollock restructured  57
Rex writes new will and sets out his wishes for JVT and Caribbean Trust        58
Todd and Pollock sold; Rex and Cheryl…

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 Pollock v Pollock

Details

AGLC: Pollock v Pollock [2020] NZHC 648
Case: [2020] NZHC 648
Decision Date: 25 March 2020

CaseChat Overview and Summary

In Pollock v Pollock, Letitia and Steven Pollock, two of Rex Pollock's children, brought claims against Cheryl Pollock, Rex's widow and the executor of his estate, and others, alleging undue influence, breaches of fiduciary duty, and seeking provision under the Family Protection Act 1955. The court dismissed Letitia's claims under the Trustee Act 1956 and Administration Act 1969, finding no evidence of undue influence or breaches of fiduciary duty. Steven's claims under the Law Reform (Testamentary Promises) Act 1949, Administration Act 1969, and High Court Rules 2016 were also dismissed. The court acknowledged Letitia and Steven's claims for provision under the Family Protection Act but found no assets in Rex's estate to satisfy those claims. The court ordered respondents to receive costs from Steven on a 2B basis, with Letitia potentially exempt unless exceptional circumstances were shown.

Orders