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IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI
SC 35/2018 [2019] NZSC 41
BETWEEN
MARK ROBERT SANDMAN Appellant
AND
COLIN CHARLES McKAY, ROGER DAVID CANN AND DAVID JOHN CLARK (as partners of Wilson McKay) Respondents
Hearing:
12 November 2018
Court:
Elias CJ, Glazebrook, O’Regan, Ellen France and Arnold JJ
Counsel:
R M Dillon for Appellant P J L Hunt and J Heard for Respondents
Judgment:
16 April 2019
JUDGMENT OF THE COURT
A The appeal is dismissed.
B Costs of $25,000 plus usual disbursements are awarded to the respondents.
REASONS
Para No.
Glazebrook, O’Regan, Ellen France and Arnold JJ
[1]
Elias CJ
[104]
GLAZEBROOK, O’REGAN, ELLEN FRANCE AND ARNOLD JJ
(Given by Glazebrook J)
TABLE OF CONTENTS
Para No.
Introduction
[1]
Background
[3]
The proceedings
[35]
Statement of claim
[42]
Court of Appeal decision
[46]
Mr Sandman’s submissions
[57]
The firm’s submissions
[63]
Evidence
[69]
Summary judgment
[71]
Strike-out
[98]
Result and costs
[102]
Introduction
The appellant, Mr Mark Sandman, is the only surviving child of Elizabeth Nancy Sandman, who died on 30 October 2013. Mrs Sandman’s other child, Victoria Sandman (Vicky), died in March 2011.
This appeal concerns whether the Court of Appeal was correct to make an order for summary judgment in favour of the respondent firm, Wilson McKay (the firm).[1] The claim by Mr Sandman is that the firm knowingly assisted in a breach of trust and/or fiduciary duty by Vicky and Mr Giboney. Mr Giboney was one of Mrs Sandman’s executors and trustees under a will executed on 2 December 2010 (the 2010 will).
Under the 2010 will the apartment Mr Sandman occupied was bequeathed to him and there were also a number of minor bequests. The residuary estate was to be divided equally between Mr Sandman and Vicky. In the event either of her children predeceased her, that child’s share of the residuary estate was to be divided in specified percentages among various relatives and friends[2] and would not go to the surviving child.
[2]These included nieces and nephews, Mrs Sandman’s sister and Mrs Giboney. Under the 2010 will, Mr Giboney was left $10,000 in consideration of his assistance to Mrs Sandman and for work undertaken as her trustee.
Under an earlier will executed in 2005 (the 2005 will), Mr Sandman was bequeathed the apartment and Vicky was left $200,000. Vicky was also bequeathed some specific items, such as jewellery and art. The residuary estate was to be divided equally between Mr Sandman and Vicky. If one of her children predeceased her, the whole residuary estate would (absent grandchildren)[3] go to the surviving child.
[3]There were no grandchildren.
After Mrs Sandman’s death, the firm obtained probate of the 2010 will and acted in the administration of the estate. Mr Sandman had lodged a caveat against the grant of probate just after…
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.
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Details
AGLC
Sandman v McKay [2019] NZSC 41
Case
[2019] NZSC 41
Decision Date
CaseChat Overview and Summary
The Supreme Court has dismissed the appeal brought by Mark Sandman against the firm of Wilson McKay. The firm was acting for Mark's mother, Elizabeth Sandman, who died in October 2013. Mark's sister, Vicky, died in March 2011. Elizabeth executed a will in December 2010. Mark claims that the firm assisted Vicky and Mr Giboney, one of the executors, to breach their fiduciary duties to Elizabeth by having her execute a will that reflected Vicky's wishes and not her own. Mark claims that the firm acted dishonestly in assisting in the breach of fiduciary duty. The Court of Appeal had made an order for summary judgment in favour of the firm. The Supreme Court has dismissed the appeal, holding that the claim for dishonest assistance was not plainly spurious or contrived and that there were issues of material fact that were unsuitable for summary judgment. The Court has also held that the claim for accessory liability should be struck out.