Pollock v Pollock - [2019] NZHC 554

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV 2016-470-000195

[2019] NZHC 554

BETWEEN NATHAN CHARLES POLLOCK and LETITIA JANE POLLOCK
Plaintiffs

AND

CHERYL LINDA POLLOCK

First Defendant & Ors

CIV 2017-470-000060

BETWEEN

STEVEN REX POLLOCK
Plaintiff

AND

CHERYL LINDA POLLOCK and PETER EDMOND WASHER

As executors, trustees and administrators of estate of R D Pollock

First Defendant & Ors

continued overleaf

Telephone Hearing: 21 March 2019

Appearances:

G C McArthur for Letitia Pollock

D Fraundorfer and P Allan for Steven Pollock P J Morgan QC for Cheryl Pollock

K J Catran for Executors

Judgment:

25 March 2019

JUDGMENT OF VAN BOHEMEN J

(on applications for leave to amend proceedings)

This judgment was delivered by me on 25 March 2019 at 2.00pm
Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

POLLOCK v POLLOCK [2019] NZHC 554 [25 March 2019]

continued from previous page

CIV 2017-470-000026

BETWEENNATHAN CHARLES POLLOCK and LETITIA JANE POLLOCK
Plaintiffs

ANDCHERYL LINDA POLLOCK and PETER EDMOND WASHER
As executors, trustees and administrators of estate of R D Pollock
First Defendant & Ors

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

Introduction

[1] Letitia Pollock (Letitia) and Steven Pollock (Steven), plaintiffs in these proceedings, have each applied for leave to file amended statements of claim, after the close of pleadings and less than two months before the start of the three-week hearing set down for 6 May 2019.

[2] The applications are opposed by the defendants, Cheryl Pollock (Cheryl), the executors and administrators of the estate of Rex Pollock (Rex), and the trustees of the Judea Valley Trust (JVT) into which assets of Rex and Cheryl were transferred before Rex’s death. The defendants say that costs and adjournment are not adequate remedies for the prejudice that would result.

[3] I heard the applications by telephone conference on 21 March 2019. At the end of the conference I indicated that I would grant the applications and give my reasons later. This judgment records my reasons.

Relevant background

[4] Letitia, Nathan Pollock (Nathan) and Steven are the children of Rex Pollock and his first wife, Pauline Raewyn Pollock. Rex and Pauline separated in 1991/1992 and were subsequently divorced.

[5] Rex married Cheryl in September 1995. At the time of their marriage, Cheryl had three children from an earlier marriage, Wayne Slater, Thomas Slater and Cassandra Slater (Cheryl’s children).

[6] In July 2007, Rex as Settlor, established the JVT. The trustees were Rex, Cheryl and CLM Trustees Ltd, a trustee company established by Cooney Lees Morgan, solicitors. The final beneficiaries were Letitia, Nathan, Steven and Cheryl’s children. The discretionary beneficiaries were the final beneficiaries, any children or remoter issue of the final beneficiaries, Cheryl and Rex.

[7] The assets of the JVT included assets re-settled from an earlier trust, also called the Judea Valley Trust, established by Rex’s mother in 1992. The final beneficiaries

of the earlier trust were Rex, Steven, Nathan and…

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.

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Details

Case: [2019] NZHC 554
Decision Date: 25 March 2019

CaseChat Overview and Summary

Letitia and Steven Pollock applied for leave to amend their respective statements of claim after the close of pleadings in the proceedings that they had commenced against Cheryl Pollock and others. The defendants opposed the applications, contending that costs and adjournment were not adequate remedies for the prejudice that would result. The judge heard the applications by telephone conference and indicated that he would grant the applications and give his reasons later. The judge recorded his reasons in a written judgment. The judge considered the applications in turn. In relation to Letitia’s application, the judge was satisfied that the proposed new causes of action based on unconscionable bargain were arguable and an issue that bore on the contest between the parties. The judge concluded that leave should be granted to Letitia to amend her statement of claim. In relation to Steven’s application, the judge found that a claim based on breach of fiduciary duty was clearly arguable in the circumstances of the case and was part of the contest between Steven and the trustees. The judge was not prepared to exclude such a claim because of the prejudice of a conflict of interest. The judge granted leave to Steven to amend his statement of claim. However, the judge agreed to give the defendants time to see if replacement solicitors and counsel could be instructed in time to enable the trial to proceed. The judge granted leave to apply to adjourn if the amended pleadings caused significant prejudice to any party. The judge ordered that the plaintiffs pay the defendants’ costs on a 2B basis as fixed by the Registrar.

Orders