Sandilands v Signal - [2020] NZHC 2354

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-434

[2020] NZHC 2354

BETWEEN
DUNCAN SANDILANDS

Plaintiff

AND

JANE SIGNAL

Defendant

Hearing: 20 August 2020

Appearances:

Plaintiff in person (by telephone)

A Darroch and S Lomaloma for defendant

Judgment:

10 September 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction and background

[1] Mr Ian Sandilands died on 7 June 2012. He had outlived his wife, Mrs Wanda Sandilands, by less than a year, for she had died on 19 October 2011. Mr and Mrs Sandilands Snr had three sons and a daughter.

[2] Mr Sandilands Snr appointed two of his sons, Mr Erskine Sandilands and the plaintiff, as the executors of his estate. They appointed the defendant as the Estate solicitor. Mr Sandilands Snr left his residual estate to his four children, but in unequal shares. He left 2/7 to each of his three sons and 1/7 to his daughter.

[3] It seems there was general agreement within the family that the unequal distribution of Mr Sandilands Snr’s residual estate amongst the four children was unfair, and the defendant was apparently instructed to prepare a deed of family arrangement varying the terms of Mr Sandilands Snr’s will so as to provide for the

SANDILANDS v SIGNAL [2020] NZHC 2354 [10 September 2020]

distribution of the residue to his children in four equal shares. Although it is not entirely clear on the affidavit evidence, it appears that the executors — Erskine Sandilands and the plaintiff — were aware that one of Mr Sandilands Snr’s other sons, Mr Malcolm Sandilands, had received money from his parents over the years and the executors wished to ascertain the details of these payments before the deed of family arrangement was finalised and the estate distributed. The defendant was therefore asked to look into this with Malcolm Sandilands or his advisers.

[4] On 14 February 2013 the defendant received an email from Malcolm Sandilands disclosing details of these payments. He also made various observations concerning the plaintiff which it is unnecessary to go into here.

[5] Erskine Sandilands apparently asked the defendant not to pass this information on to the plaintiff. She passed it on to the solicitors acting for the plaintiff at the time, but asked them not to pass it on to him. They did not do so. As a result, the deed of family arrangement was executed with the plaintiff being in ignorance of this information.

[6] The plaintiff has complained to the Law Society about the defendant’s actions. Indeed he has made multiple complaints against the defendant and others. To date there has been no adverse finding, although the only extant complaint is yet to be disposed of.

[7] Essentially, in this proceeding, the plaintiff says that had the defendant passed on this information he would have insisted that these payments be accounted for within the deed of family arrangement by debiting them to Malcolm Sandilands.

[8] He says that because the defendant did…

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 Sandilands v Signal

Details

AGLC: Sandilands v Signal [2020] NZHC 2354
Case: [2020] NZHC 2354
Decision Date: 10 September 2020

CaseChat Overview and Summary

The case of Sandilands v Signal [2020] NZHC 2354 involved Duncan Sandilands, one of the executors of his father's estate, suing Jane Signal, the estate solicitor, for failing to disclose information that would have altered the distribution of the estate. The legal issues the court had to decide were whether the defendant's actions constituted a breach of professional duty and, if so, whether the plaintiff's claim for damages was viable. Additionally, the court had to determine whether it was just to require the plaintiff to provide security for costs, considering his impecuniosity and residency abroad.

The court found that the defendant did indeed breach her professional duty by withholding information from the plaintiff. However, the court was less convinced about the viability of the plaintiff's claim for damages. The plaintiff's claim seemed to conflate his roles as an executor and a beneficiary, and the potential loss he suffered might not be as significant as he claimed. The court also noted that the plaintiff's conduct of the litigation, being unassisted, had likely increased the costs involved.

Considering these factors, the court concluded that it was just to require the plaintiff to provide security for costs. The plaintiff's entitlement to pursue his claim had to be balanced against the defendant's right to protection from unreasonable costs. The court ordered the plaintiff to pay $15,000 into court as security for costs, pending which the proceeding would be stayed. The plaintiff's application for discovery and interrogatories was dismissed. The court also reserved the costs of the applications, with a preliminary view that the defendant would be entitled to costs on a standard basis.

Orders