Remnant v Mills - [2020] NZHC 1937

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-268

[2020] NZHC 1937

BETWEEN
HEATHER IRENE REMNANT

Plaintiff

AND

JEFFREY HARGEN MILLS

Defendant

Hearing: On the papers

Counsel:

C M Hanafin and A G Needham for Plaintiff S J Layburn and T J Flintoff for Defendant

Judgment:

4 August 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(on application to appoint litigation guardian)

This judgment was delivered by me on 4 August 2020 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 4 August 2020

REMNANT v MILLS [2020] NZHC 1937 [4 August 2020]

[1] The plaintiff, Ms Remnant, seeks summary judgment in respect of amounts payable under a relationship property agreement entered into at a mediation convened on 17 February 2020. The defendant, Mr Mills, was served on 22 June 2020. The first call of the summary judgment application is on 6 August 2020.

[2] Mr Mills’ present wife, Fleur Mills, has applied on a without notice basis to be appointed litigation guardian for her husband and to extend time for filing papers in opposition to the summary judgment application. That application was filed with the Court on 31 July 2020. Ms Mills calculates the notice of opposition had to be filed on 31 July 2020.

[3] Ms Mills explains in her affidavit (affirmed 31 July 2020), that Mr Mills wants to set aside the agreement reached at mediation on the grounds that at the time of the mediation his decision making capacity was impaired. Ms Mills seeks to be appointed litigation guardian on the grounds that she believes Mr Mills is not capable of understanding the issues involved in the litigation to be commenced in the Family Court or to give instructions to defend the present proceedings. The application to appoint a litigation guardian is made pursuant to r 4.30(1) High Court Rules 2016 which provides “an incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders”.

[4]Rule 4.29 defines “incapacitated person” as:1

incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—

(a)not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

(b)unable to give sufficient instructions to issue, defend, or compromise proceedings.

[5] Ms Mills has obtained a specialist report from Dr Dominic Lim who is a Consultant Psychiatrist of Christchurch. Dr Lim’s scope of practice includes general and old age psychiatry. He has provided a lengthy report dated 13 July 2020 into Mr Mills’ capacity. Dr Lim was asked to address a number of specific questions, some

1 High Court Rules 2016, r 4.29.

of which go back to Mr Mills’ mental state at the time of the relationship property agreement, but there is a specific question as to Mr Mills’ present capacity is to make informed decisions and give instructions in respect 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 Remnant v Mills

Details

AGLC: Remnant v Mills [2020] NZHC 1937
Case: [2020] NZHC 1937
Decision Date: 4 August 2020

CaseChat Overview and Summary

The case of Remnant v Mills involves a plaintiff, Heather Irene Remnant, seeking summary judgment for amounts payable under a relationship property agreement. The defendant, Jeffrey Hargen Mills, was served with the application on 22 June 2020. The first call of the summary judgment application was scheduled for 6 August 2020. The defendant's wife, Fleur Mills, applied to be appointed litigation guardian for her husband and to extend time for filing papers in opposition to the summary judgment application. The court was required to decide whether to appoint Fleur Mills as litigation guardian for her husband and to determine if the time for filing papers in opposition should be extended.

The court considered the application for the appointment of a litigation guardian for Mr Mills. It was established that Mr Mills may not have the capacity to understand the issues involved in the litigation or to give instructions to defend the proceedings without assistance. A specialist report from a Consultant Psychiatrist of Christchurch, Dr. Dominic Lim, indicated that Mr Mills may be unable to make informed decisions and give instructions in respect of the litigation without assistance, particularly when under stress. Mr Mills himself expressed his lack of confidence in instructing his lawyer to run his case and agreed to his wife being appointed as litigation guardian. The court concluded that it was appropriate to appoint Fleur Mills as litigation guardian for Jeffrey Hargen Mills in respect of the proceeding.

The court granted the application to appoint Fleur Mills as litigation guardian for Jeffrey Hargen Mills in respect of the proceeding, subject to the condition that Ms Mills should defer to Mr Mills' wishes when he is lucid and able to make his own decisions. The court refused to deal with the application to extend time for filing papers in opposition on a without notice basis. It was ordered that documents filed after this judgment should refer to Mr Mills by his litigation guardian, Fleur Mills. The court also directed that a copy of this judgment be sent to Ms Remnant's solicitors.

Orders