Re Goldman - [2016] NZHC 1010

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2176 [2016] NZHC 1010

IN THE MATTER of Rule 4.35 High Court Rules

AND

IN THE MATTER

of DIANA PERKINS GOLDMAN Incapacitated Person

AND

IN THE MATTER

of LEWIS THOMAS GRANT Applicant

Hearing: 5 May 2016

Appearances:

AF Grant and AJ Steele for Incapacitated Person
VTM Bruton and P Brown for Applicant (a Defendant in
CIV-2015-404-1962)

KG Davenport QC for Gwyneth Christine Perkins (a Defendant in CIV-2015-404-1962)

PM Fee and F Darlow for Fountainhead Trustee Limited (a
Defendant in CIV-2015-404-1962)

Judgment:

18 May 2016

JUDGMENT OF TOOGOOD J [Application to remove Litigation Guardian]

This judgment was delivered by me on 18 May 2016 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Goldman v Grant [2016] NZHC 1010 [18 May 2016]

Introduction

[1] A defendant in a substantive civil proceeding has applied for an order revoking the appointment of a litigation guardian for the incapacitated plaintiff who sues him, and has suggested replacements. Unsurprisingly, the application is opposed on behalf of the plaintiff.

[2] The plaintiff, Diana Perkins Goldman, is 88 years old. In the mid-1970s, her husband and she acquired a large farm on Waiheke Island: “Fountainhead”. Mrs Goldman’s husband died in 2007. The couple had no children, but they have many nieces and nephews on both sides of the marriage. “Fountainhead” has a private beach and government valuations estimate that it is worth more than $20 million; it is owned by Fountainhead Holdings Ltd. Until February 2013, all of the shares of the company were owned by Mrs Goldman, and she was also its sole director.

[3] On 28 February 2013, Mrs Goldman gifted all her shares in Fountainhead Holdings Ltd to the trustees of the Fountainhead Trust, a family trust she had settled on 28 September 2012, as part of a relatively complex estate-planning exercise. The named discretionary beneficiaries of the Trust are Mrs Goldman; a niece, Ms Christine Perkins; a great-nephew, Mr Thomas Lane (Ms Perkins’s son); and Mr Robert Goldman, who is a nephew of Mrs Goldman’s late husband. Other discretionary beneficiaries include any children, grandchildren or great- grandchildren of Mr Lane, as well as charities or charitable societies. The trustees of the Trust are Mrs Goldman; a closely held trustee company, Fountainhead Trustees Limited; and Ms Perkins.

[4] On 28 September 2012, Mrs Goldman also signed a new will in which she left the Trust the residue of her estate. On 4 November 2012, Ms Perkins became a co-director of Fountainhead Holdings Ltd.

The substantive proceedings

[5] On 21 August 2015, Mrs Goldman filed a statement of claim in CIV-2015-

404-1962 (“the substantive proceedings”) against the trustees of the Fountainhead Trust, Ms Perkins and Mr Lane. She alleges that she was in a relationship of trust and confidence with Ms Perkins and Mr Lane, who is a solicitor, such that they had influence over her in relation to the settlement 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 Re Goldman

Details

AGLC: Re Goldman [2016] NZHC 1010
Case: [2016] NZHC 1010
Decision Date: 18 May 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Lewis Lane applied for the removal of Mr Lewis Grant as litigation guardian for Diana Perkins Goldman, who is the plaintiff in a substantive proceeding. The substantive proceeding involves allegations of undue influence and unconscionability in relation to the settlement of a trust and a will. The application was opposed by Mrs Goldman and Mr Grant. The court was required to determine whether Mr Lane had standing to apply for the removal of Mr Grant as litigation guardian, and whether Mr Grant should be removed on the basis that he was not independent or was not acting in Mrs Goldman's best interests. The court held that Mr Lane did not have standing to apply for the removal of Mr Grant as litigation guardian. The court also held that Mr Grant was not required to be independent in the sense of having no personal interest in the conduct or outcome of the proceeding. The court held that the overarching consideration in these matters was what was in the interests of the person represented, and that Mr Lane's views on what should be done were inevitably tainted by self-interest. The court dismissed the application and awarded costs to Mrs Goldman.

Orders