Sandman v Giboney - [2017] NZHC 1832

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-485-000919 [2017] NZHC 1832

BETWEEN
MARK ROBERT SANDMAN

Plaintiff/Respondent

AND

ROBERT JARRARD GIBONEY AND COLIN CHARLES MCKAY as executors of the estate of Elisabeth Nancy sandman First Defendants/Applicants

AND

COLIN CHARLES MCKAY, ROGER DAVID CANN AND DAVID JOHN CLARK solicitors practicing in partnership of Wilson McKay

Second Defendants/Applicants

Hearing: 27 July 2017

Appearances:

R M Dillon for the Plaintiff/Respondent
P Hunt/A Colgan for the Defendants/Applicants

Judgment:

4 August 2017

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
04.07.17 at 3:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

M R SANDMAN v R J GIBONEY AND C C MCKAY AND C C MCKAY, R D CANN AND D J CLARK [2017] NZHC 1832 [4 August 2017]

[1] The second defendants apply to strike out the plaintiff’s (Mr Sandman) proceeding against them or for summary judgment, and in the alternative for security for costs.

[2] Mr Sandman pleads various causes of action against the executors of the estate of his mother, Elisabeth Sandman (Mrs Sandman), who died in October 2013 and seeks a recall of probate of the Will executed by her in 2010 (the 2010 Will).

[3] The second defendants (Wilson McKay) are practising solicitors and acted on various matters for Mrs Sandman in the latter years of her life and in the administration of her estate following her death.

[4] The statement of claim pleads just a single cause of action against Wilson

McKay – described as “knowing assistance”.

[5] Wilson McKay submits the plaintiff’s cause of action can be struck out and dismissed summarily. It says a cause of action for dishonest assistance or accessory liability requires, firstly, a trust or fiduciary relationship, second, a breach of that, and third, knowing and dishonest assistance by Wilson McKay.

[6] Wilson McKay say Mr Sandman has not pleaded those elements which he should have, and therefore there is no valid cause of action and the claim should be struck out. Further, it is Wilson McKay’s position that sufficient affidavit evidence has been provided to show that a claim of dishonest assistance cannot be sustained meaning summary judgment could be entered in its favour without need to resolve any factual disputes.

[7] In the event neither strike out nor summary judgment orders are made, Wilson McKay applies for security for costs.

Background

[8] Mrs Sandman executed a Will in 2005 (the 2005 Will) prepared by Guardian Trust. By it she left an apartment to Mr Sandman and $200,000 to her daughter Vicki. The residual estate was to be divided equally between Mr Sandman and his

sister Vicki. Mr Sandman was to receive the whole of his mother’s estate if Vicki

predeceased her mother.

[9] Wilson McKay was first instructed by Mrs Sandman in 2007 when she sold her home and moved to a retirement village (the village). At that time she executed two powers of attorney (in relation to property and welfare) in…

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 Sandman v Giboney

Details

AGLC: Sandman v Giboney [2017] NZHC 1832
Case: [2017] NZHC 1832
Decision Date: 4 August 2017

CaseChat Overview and Summary

The case involves a dispute between Mark Sandman, the son of Elisabeth Sandman, and several parties, including the executors of Elisabeth's estate and the law firm that acted for her. The central issue is whether the law firm, Wilson McKay, knowingly assisted Elisabeth in executing a will in 2010 that significantly altered the distribution of her estate, to the detriment of Mark. The law firm sought to have the claim struck out or dismissed for summary judgment, or alternatively, for security for costs.

The court examined whether the plaintiff, Mark, had sufficiently pleaded a cause of action for "knowing assistance" against the law firm. This cause of action, akin to "dishonest assistance" or "accessory liability," requires a breach of trust or fiduciary duty, assistance in that breach, and the assistant's dishonesty. The court found that the plaintiff's pleadings were not clear enough to establish these elements, but also noted that the case was not straightforward and required a detailed examination of the facts.

The court dismissed the application for strike out and summary judgment, finding that the plaintiff's case was not without merit. However, the court also found that the plaintiff might be unable to pay costs if the litigation was unsuccessful. Consequently, the court ordered the plaintiff to provide security for costs in the amount of $40,000, to be paid in two installments. The law firm was awarded costs on a 2B basis, along with disbursements.

This decision highlights the complex interplay between fiduciary duties, the capacity to execute a will, and the potential for third parties to be held liable for their involvement in the administration of an estate. It underscores the importance of clear pleadings in establishing claims of knowing assistance and the need for a careful assessment of the facts in such cases.

Orders