Ryburn v Gilbert
[2025] NZHC 2013
•24 July 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-000305
[2025] NZHC 2013
UNDER Part 18 of the High Court Rules 2016; Administration Act 1969; Trustee Act 1956; and Trusts Act 2019 IN THE MATTER OF
the estate of William Montague Gilbert; and the Gilbert Family Trust
BETWEEN
JENNIFER JOY RYBURN
First Plaintiff
PEGGY EILEEN LANGLANDS
Second PlaintiffMARIANNE JEANETTA WILDERMOTH
Third Plaintiff
BERNARD JOHN GILBERT
Fourth PlaintiffAND
RICHARD MONTAGUE GILBERT as
executor and trustee of the estate of WILLIAM MONTAGUE GILBERT
First Defendant
.../intituling cont over
Hearing: 14 July 2025 Counsel:
CT Gudsell KC for Plaintiffs
JWA Johnson for First, Fourth, Seventh and Eighth Defendants
Judgment:
24 July 2025
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 24 July 2025 at 3 pm
pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
RYBURN v GILBERT [2025] NZHC 2013 [24 July 2025]
GARY MALCOLM HOBBS as former executor and trustee of the estate of WILLIAM MONTAGUE GILBERT
Second Defendant
REDOUBT TRUSTEES LIMITED as
executor and trustee of the estate of WILLIAM MONTAGUE GILBERT
Third Defendant
RICHARD MONTAGUE GILBERT as
trustee of the GILBERT FAMILY TRUST Fourth Defendant
GARY MALCOLM HOBBS as former
trustee of the GILBERT FAMILY TRUST Fifth Defendant
REDOUBT TRUSTEES LIMITED as
trustee of the GILBERT FAMILY TRUST Sixth Defendant
RICHARD MONTAGUE GILBERT, RICHARD LYLE GILBERT and
G W TRUSTEES MOERANGI LIMITED
as trustees of the MOERANGI LANDS TRUST
Seventh Defendants
RICHARD MONTAGUE GILBERT
Eighth Defendant
The issues
[1] This judgment addresses a strike-out application and an application for summary judgment.1 The latter requires leave, about which more later. Related principle is (well) settled but important:2
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289 at pp 294 – 295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at pp 316 – 317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).
[2] A defendant seeking summary judgment has a considerable burden to discharge.3 He, she, or it must identify “a complete defence to the plaintiff’s claim, that is, a ‘king hit’”.4 The reason is obvious: summary judgment denies a party their day in court.
Background
[3] The case is about the estate of William Gilbert (Bill) and the Gilbert Family Trust (the Gilbert Trust). The context is a family farm and related property. Four of Bill’s children are plaintiffs: Jennifer Ryburn, Peggy Langlands, Marianne Wildermoth, and Bernard Gilbert (Butch). Richard Gilbert, a fifth child, is the primary defendant. Richard is sued in his personal capacity; as an executor and trustee of Bill’s estate; as a trustee of the Gilbert Trust; and as the trustee of a second trust, the Moerangi Lands Trust (the Moerangi Trust). Richard’s son, Lyle, is also sued as a trustee of the Moerangi Trust. Remaining defendants are former and existing trustees and executors.
1 It also addresses an application for further particulars or a more explicit pleading.
2 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267.
3 Stephens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734 at [9].
4 Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 (CA) at [22].
[4] There are three causes of action. The first two allege breaches of fiduciary duty; the third, undue influence. Put broadly — very broadly — the plaintiffs’ case is that the defendants breached their fiduciary obligations to them by:
(a)Two deeds of family arrangement contrary to the terms of Bill’s will. The deeds favour Richard to the detriment of Jennifer, Peggy, Marianne and Butch.
(b)Resettling assets from the Gilbert Trust to the Moerangi Trust.
[5] The signatures of Jennifer, Peggy, and Marianne in relation to the first deed of family arrangement are on a separate page to the deed itself. Jennifer, Peggy, and Marianne say they attended a meeting at their family’s lawyer’s office in which the lawyer told them, in Richard’s presence:5
i.There was a problem with Bill’s Will being ‘out-dated’ and/or ‘not applicable’ because Butch had acquired farm properties during Bill’s lifetime, which they understood, on the basis of [the lawyer’s] explanation, made Bill’s Will ‘null and void’; and/or
ii.There was no equity in Bill’s Estate as a result of heavy borrowing to acquire Butch’s farm properties; and/or
iii.Butch, having left the Partnership, had ‘no debt’; and/or
iv.Pauline [Bills’ wife] was not in attendance as it was too soon for her following Bill’s death, and Butch had ‘already signed’ the document referred to below.
[6] Jennifer, Peggy, and Marianne say they were told to sign a document and the lawyer would “sort” everything later. It follows Jennifer, Peggy, and Marianne allege they did not agree to the first deed of family arrangement, and their apparent agreement was gained by deceit.
[7] Butch says something similar occurred in the immediate wake of Bill’s death. He was asked to attend the family’s lawyer and sign a document which he understood made Bill’s will null and void. Butch says this explains his signature to the first deed of family arrangement.
5 The lawyer has since died, and the lawyer’s firm is not a defendant. I, therefore, refrain from identification. Whether de facto suppression should endure is for the trial Judge.
[8] A second deed of family arrangement was made years later. It essentially says that Bill’s interest in livestock had been overlooked in the first deed and was being corrected by it, the second deed. Butch is not recorded as a party to the deed. Jennifer, Peggy, and Marianne are. They say they signed it as Richard told them it was a tidy-up measure in connection with his divorce.
[9] The third cause of action alleges undue influence in relation to the children’s mother (and Bill’s wife), Pauline, by Richard.
A convenient summary of the arguments in support of the applications
[10] Mr Johnson filed extensive submissions on behalf of his clients in advance of the hearing.6 At the hearing, Mr Johnson also tendered a “supplementary outline of submissions”. I reproduce that document as the judgment unfolds, for, it conveniently summarises the crux of the arguments in support of the applications.
Strike out?
First cause of action
[11]Mr Johnson contends the first cause of action should be struck because:
3.Unlike the First Deed of Family Arrangement, the plaintiffs do not deny in their pleading that Jennifer, Peggy and Marianne all executed the Second Deed. The Second Deed recites the First Deed and its terms. As such, the plaintiffs are estopped by deed in denying the fact of the First Deed and its terms.
4.The serious claims of forgery and fraud are not pleaded with anywhere near the particularity and care that is required for such serious allegations. There is also a failure to plead the particulars of the state of mind of Richard in accusing him of having fraudulent intent.
5.The particulars of the first cause of action are wholly inadequate. In particular, at paragraph 105(d) and (vi) of the statement of claim, the plaintiffs allege a list of five different kinds of vitiated consent claims regarding the two deeds of family arrangement (misrepresentation; deceit; mistakes of fact; undue influence; breaches of trust and/or fiduciary duty). This is unacceptable as a valid pleading because:
(a) Separate causes of action should be pleaded separately.
6 The first, fourth, seventh, and eighth defendants. The third, fifth and sixth defendants abide the Court’s decision in respect of the applications.
(b) In any case, the exact nature of the claim and the corresponding relief sought (indeed the available relief) is not identified and pleaded.
(c) The legal elements of each claim of vitiated consent (apparently both at law and in equity) are not articulated and pleaded.
6.The claims are time-barred by the six-year limitation period applying under the Limitation Act 1950 (1950 Act):
(a) All claims are personal claims against trustees, fiduciaries, or persons owing fiduciary-like obligations in equity that are analogous to claims at law that attract the standard six-year limitation period.
(b) The “fraud exception” in s 21(1)(a) does not apply:
(i)Per the English Court of Appeal’s decision in Gwembe Valley Development Co Ltd (in rec) v Koshy (No 3), the “starting assumption” in claims against fiduciaries is that the standard six-year limitation period applies.
(ii)“Fraud” in this context (that is, where it is capable of creating an absolute and indefinite exception to the statutory limitation provision justifiable on narrow policy grounds) requires that the breach of trust be “dishonest”, per Gwembe Valley, in turn citing Millett LJ in the celebrated equity case of Armitage v Nurse.
(iii)Yet here, the plaintiffs have failed to properly plead the requisite fraudulent breach of trust required by s 21(1)(a):
(1)They have not pleaded the relevant breach(es) of trust “and/or fiduciary duty” that are relied on; and
(2)They have not pleaded the particulars of how Richard is said to have had acted fraudulently in the relevant sense, by possessing the necessary dishonest intent. (Again, this also breaches the plaintiffs’ obligation under the Rules to plead and particularise fraudulent intent precisely.)
(iv)Fundamentally, it is only Richard’s intent that matters, he cannot be imputed with the fraud of any other co-trustee ([the lawyer] for example) unless he is truly “party or privy to” the underlying fraud, possessing the necessary dishonest intent himself. It has been said that the trustee relying on limitation must be “morally complicit” for the defence to fail in the face of a fraud engaging s 21(1)(a). There is no pleading to support such a position in respect of Richard.
[12]I respectfully disagree.
[13] First, the effect of the deeds (of family arrangement) is a quintessential trial issue. If, for example, the plaintiffs establish they were deceived by fraud in relation to the deeds, then the deeds would ordinarily be treated as invalid for that reason. Whether there was fraud in relation to the deeds is, obviously, a matter of contested fact, adjudication of which must await trial.
[14] Second, the claim is adequately pleaded, including in relation to fraud. McGechan on Procedure provides this statement of principle in connection with r 5.17(2) of the High Court Rules 2016, which is directed at states of mind:7
As a serious allegation, fraud or dishonesty must be alleged with care and particularity. A pleading may not contain any allegation of fraud in the absence of reasonably credible material that, as it stands, establishes a prima facie case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved. General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud: Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15], Peck v Grasshopper Lawnmowing Services Ltd [2018] NZHC 2615 at [55]. A claim of fraud must be fully and precisely pleaded and particularised and of sufficient cogency that it should go to trial: Commissioner of Inland Revenue v Redcliffe Forestry Venture [2012] NZSC 94, [2013] 1 NZLR 804 at [33]. The allegation must be “specific, pointed, and relevant”: Prosser v NZ Investment Trust Ltd [1937] GLR 93. …
[15] Mr Johnson is correct the claim does not explicitly address Richard’s state of mind when r 5.17(2) says it should. However, the claim does include substantial sets of particulars addressing the factual propositions in connection with the alleged fraud(s). Those reproduced earlier in relation to the alleged meeting between the lawyer and Jennifer, Peggy, and Marianne provide a convenient example. Moreover, the claim clearly alleges fraud by the propositions identified, including, obviously, that the plaintiffs were deceived by Richard to provide open-ended signatures later applied to a deed of arrangement contrary to their interests. That the term “fraud” is not expressly used in the claim is, therefore, also immaterial.
[16] Third, that the claim alleges fraud encompassing dishonesty in the sense identified by Millet LJ in Armitage v Nurse answers the time-bar contention.8
7 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR5.26.08].
8 Armitage v Nurse [1998] Ch 241 (CA) at 251 and 260–261.
[17] Fourth, the complaint that the cause of action contains “different kinds of vitiated consent claims” misunderstands specific particulars as causes of action when they are not offered as that. Rather, and as Mr Gudsell KC for the plaintiffs helpfully confirmed at the hearing, the particulars at paras 105(d)(iv)(1)–(5) and 105(d)(vi)(1)–(5) of the claim collate different but interrelated types of conduct said to have influenced Jennifer, Peggy, and Marianne in (a) “signing” the first deed of arrangement and (b) later signing the second.
Second cause of action
[18] The Gilbert Trust contains at least one clause authorising self-dealing, namely cl 12.2. Mr Johnson contends the second cause of action should be struck because of it and other potential self-dealing authorisations:
7.The rule against self-dealing does not apply here because self-dealing by trustees of the GFT is authorised in law, both expressly and impliedly.
8.Express authorisation occurs by the express terms of the Gilbert Family Trust Deed, in particular furnishing the trustees with trust powers as follows:
(a) Clause 8: re-settlement power with full discretion (as they “in their discretion think fit”).
(i)Clause 8.6: trustees to exercise discretion “as absolute owner could lawfully make or confer in relation to any property belonging to him beneficially”.
(b) Clause 11: power to in their discretion act in respect of the trust fund as if they were entitled to it as beneficially owners not subject to any restriction.
(c) Clause 12.2: trustees may act and exercise powers conferred on them notwithstanding that as a trustee of any other settlement he enters into a contract with the Trustees ... and notwithstanding that his personal interest or duty in a particular matter may conflict with his duty to the beneficiaries of the settlement.
9.Self-dealing is impliedly authorised here in any case by the inherent nature of the settlement of the GFT by Pauline. By appointment as both trustee and beneficiary with the powers of disposition and appointment as trustee, he was put in a position of potential conflict. Richard did not put himself in that position; Pauline did. Thus, she impliedly authorised self-dealing by her trustees, including Richard. There can [be] no breach of fiduciary duty arising automatically on the bare fact of “self-dealing”, as that term is strictly (and properly) understood in equity.
[19] Mr Gudsell notes the fifth and sixth defendants have not applied to strike this cause of action even though it is also brought against them. Mr Gudsell argues self-dealing is a matter for trial, noting the Court of Appeal has said it “depends on the particular circumstances”, including those in relation to the settlor’s intentions.9 As those circumstances are at large, adjudication now would be premature.
[20]I agree with Mr Gudsell.
[21]This leaves the claim against the seventh defendants, which I address at [36].
Third cause of action
[22] As will be recalled, the third cause of action alleges undue influence by Richard of Pauline. Pauline died years ago. Against this background, Mr Johnson contends the cause of action should be struck because the plaintiffs lack standing to sue; because the action is time-barred; and because this aspect of the claim is “inherently implausible”:
11.The plaintiffs do not have standing to bring a claim seeking to rescind an array of transactions and documents entered into by Pauline during her lifetime. To the extent those claims could possibly exist (which the Gilbert Defendants deny), these can only be brought by Pauline’s estate. Beneficiaries of an estate cannot bring actions belonging to an estate directly.
12.Even if the plaintiffs were estate beneficiaries, their pleading does not meet the requirements for a “derivative proceeding” (rolling up into one the two separate actions of: (1) compelling due administration from an errant executor; and (2) suing the third party in the name of the trustee), and their case does not meet the threshold of “special circumstances” for such a derivative procedure (known as the Vanderpitte procedure):
(a) There is no evidence of a failure to protect assets; and
(b) There is no executor of the Estate at all, so there would be an additional first step required in the beneficiaries (which does not include the plaintiffs) seeking appointment of an executor by special letters of appointment.
13.But fundamentally, the plaintiffs are not beneficiaries of Pauline’s Estate. This is fatal to their claim. They have no standing to even seek due administration of the Estate. They have no standing to seek to have an administrator appointed by special letters of administration. Their
9 McLaughlin v McLaughlin [2023] NZCA 473, (2023) 6 NZTR 33-010 at [125] and [128].
pleading is wholly incapable of founding a claim to the relief the plaintiffs seek.
14.Further, even if the plaintiffs had standing to bring its third cause of action, it is time-barred by the 1950 Act. In particular, s 21(1)(a) does not apply because the plaintiffs do not allege any breach of trust, the central requirement of s 21.
15.In any event and at the very least, the 15-year longstop period in s 23B would apply to time-bar all of the impugned transactions that occurred more than 15 years prior to the filing of the proceeding (the memorandum of wishes; the transfer of Pauline’s one-half share of Moerangi to the GFT; and all forgiveness of debt before the relevant limitation date in 2007).
16.Alternatively, the substantive claim under this cause of action is so inherently implausible and unsustainable that it ought to be struck out:
(a) As with the apparent “undue influence” claim (mixed in with the other claims) in the first cause of action, the claim of undue influence under the third cause of action is pleaded in a wholly inadequate way that discloses no reasonably arguable cause of action:
(i)The plaintiffs’ pleading wrongly relies on an “evidential presumption of undue influence”. In equity, an essential element of such a presumption arises [in] the existence of a recognised “relationship of influence”. In fact, no such relationship existed between Richard and his mother, Pauline, at any relevant time.
(ii)No reliable proof of influence is capable of production in the circumstances, especially given Pauline’s death.
(iii)A one-size-fits-all claim is made in respect of a wide variety of different transactions and documents made over the course of a period spanning nearly two decades (from 26 November 1992 to 10 February 2012).
(iv)The claim fails to engage with each of the impugned transactions separately and articulate how Pauline’s intention was procured through Richard’s supposed “undue influence” for each.
(v)The impugned transactions were executed and carried out by Pauline in consultation with her professional advisers.
[23]Again, I respectfully disagree.
[24] The last argument is unsustainable in this context — strike-out — as the pleading is assumed to be true.
[25] Questions of limitation are matters for trial because the action is equitable, any limitation period applies by analogy, and determination of the (appropriate) analogy is, necessarily, fact-sensitive.10 That is not to say a limitation argument could never succeed in an equitable context; a case might be so clearly out of time it should be struck for that reason. But this is not such a case. It presents as factually “messy”, by which I mean replete with factual disputes spanning many years. Therein lies the inapplicability of strike out.
[26] Somewhat similar observations apply in relation to the question of standing, which does not ordinarily admit bright lines.11 Moreover, as Mr Gudsell observes, Pauline’s estate has not been administered: no letters of administration or probate have been granted, and no one has been appointed executor or administrator. One of the two executors named in Pauline’s will has died; the other renounced the role, then died. Richard’s de facto administration of the estate appears to be just that. All of which is to say that standing, like the other matters raised by Mr Johnson, is a matter for trial.
Summary judgment?
[27] The first, fourth, seventh, and eighth defendants also seek summary judgment on the bases of the same arguments advanced in support of strike-out, and in reliance on affirmative defences of laches and acquiescence.
[28] Rule 12.4(3) of the High Court Rules anticipates a summary judgment application on behalf of a defendant will be filed and served with the statement of defence; that is, shortly after the claim’s commencement. The same rule permits a later application with leave of the Court. The application was filed 16 April 2024, more than one year after the initial statement of defence, which was filed 15 December 2022.
[29] Mr Johnson did not seek to justify the delay. He did, however, note two changes in representation on the part of his clients along the way. Mr Johnson argued
10 See, for example, Lee v Lee [2015] NZCA 514.
11 See, for example, Re Estate of Miah [2019] NZHC 1278, [2019] NZAR 1293.
leave should be granted despite the delay because of the absence of prejudice to the plaintiffs and the apparent merit in the application.
[30] It is unnecessary to rehearse the chronology because the application is late by any measure and the delay unexplained.
[31] I do not accept the plaintiffs have not suffered prejudice. The plaintiffs have had to prepare for, and advance, extensive argument under the banner of summary judgment when they might otherwise have been preparing for trial, which begins soon (28 October 2025). That prejudice has likely been compounded by the absence of any apparent attempt to delineate between the arguments in support of strike-out and those in support of summary judgment. I acknowledge that distinction is not always clear in practice. However, I repeat there has been no apparent attempt to observe it.
[32] As to merit, I have already addressed most of the arguments in any event, because the same arguments were offered under each head, a point that underscores that above. The contentions arising only under summary judgment — laches and acquiescence — appear awkward in this context as each requires close factual inquiry, thereby favouring trial adjudication.
[33] I, therefore, decline leave for the late summary judgment application. This leaves an application for further particulars (or a more explicit pleading).
Further particulars?
[34] The identified defendants contend they need further particulars or a more explicit pleading in relation to a host of paragraphs in the statement of claim. The most significant complaint concerns the adequacy of the pleading in relation to fraud. This I have essentially addressed, as to which see [15]. Again, the existing claim and its extensive particulars do adequately identify the alleged fraud or frauds. Consequently, I am not persuaded additional pleading is needed other than formal compliance with r 5.17(2), to make explicit what is currently implicit in relation to Richard’s state of mind vis-à-vis the first and second causes of action. The plaintiffs are to add this pleading within 15 working days from delivery of this judgment.
[35] Most of Mr Johnson’s other complaints are essentially questions for cross-examination in the guise of an application for particulars, or otherwise matters for trial. Furthermore, with one caveat, there can be no complaint the defendants do not understand the case against them. This is supported by the fact that statements of defence have been filed and served without apparent difficulty, and that a statement of issues was identified by agreement during the case management process. The significance of these features is self-evident.
[36] The one caveat is this. Mr Johnson is right to question the nature of the second cause of action against the seventh defendants. It is cryptic. The plaintiffs should, therefore, identify the claimed lack of any legal basis for the trustees of the Moerangi Trust to receive the assets of the Gilbert Trust. Again, the plaintiffs are to rectify the position within 15 working days from delivery of this judgment.
[37] This conclusion should not be misunderstood as an invitation for a further interlocutory application directed at strike-out, let alone summary judgment. Any apparent failings in relation to this aspect of the claim should, given the proximity of trial, be dealt with at trial.
Costs
[38] I am inclined to award the plaintiffs 2B scale costs on the strike out application, and the same costs on the application for summary judgment, with a modest uplift of 20 percent in recognition of its unexplained lateness and concomitant prejudice. In relation to the application for particulars, I am inclined to let each party bear their own costs given each’s roughly equal measure of success. If the parties disagree, they should file memoranda of not more than five pages each, in this sequence:
(a)The plaintiffs on or before 14 August 2025.
(b)The defendants on or before 28 August 2025.
Result
[39]The application for strike-out is dismissed.
[40]The application for leave to apply for summary judgment is declined.
[41] The application for further particulars is granted at [34] and [36] but otherwise dismissed.
……………………………..
Downs J
Solicitors/Counsel:
Fergusson Bhullar & Scott, Taumarunui. Lewis Lawyers, Cambridge.
Fee Langstone, Auckland.
Garth O’Brien & Associates, Te Awamutu CT Gudsell KC, Hamilton.
JWA Johnson, Auckland.
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