Sayes v Tamatekapua

[2012] NZHC 1697

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-516 [2012] NZHC 1697

BETWEEN  GERRARD WENTWORTH SAYES Plaintiff

ANDPRUDENCE JANE TAMATEKAPUA First Defendant

ANDSHELLEY ANN SAYES Second Defendant

ANDJULIE BELLE GREER Third Defendant

Hearing:         13 July 2012

Counsel:         M Sayes in person

K Blackmore for G W Sayes
H M McKee for second, third and tenth defendants

Judgment:      13 July 2012

(ORAL) JUDGMENT OF LANG J

[on application for interim distribution of funds]

GERRARD WENTWORTH SAYES V PRUDENCE JANE TAMATEKAPUA HC AK CIV-2007-404-516 [13

July 2012]

ANDKENSINGTON SWAN Fourth Defendant

ANDWALTER WILLIAMS & CO Fifth Defendant

ANDKENNETH JOHN CROSSON AND JOHN BEVAN

Sixth Defendants

ANDNIGEL GREER AND MATTHEW CARSON

Seventh Defendants

ANDCOLIN JAMES WRIGHT Eighth Defendant

ANDMICHAEL W SAYES Ninth Defendant

[1]      This proceeding came before me again today as a result of a request by Mr Michael Sayes for an advance of $100,000 in order to enable him to meet legal fees that will be payable in respect of relationship property proceedings due to be heard in this Court on 27 August 2012.

[2]      When the matter was last before me, I indicated I had some sympathy with Mr Sayes’ position, because he clearly needs legal assistance in relation to the claim by his former wife.  For that reason, I suggested that he should advise the trustees of the amount he sought to meet his legal costs, and that they should then circulate the other interested parties in order to obtain their reaction to the proposal.

[3]      The  trustees  indicate  that  they  are  not  in  a  position  to  consent  to  the application.  They point out that, as matters presently stand, Mr Sayes will not give an undertaking not to challenge the deeds of settlement currently forming the framework for the distribution of the assets of the various wills and trusts that are the subject of this proceeding.  Mr Sayes has made it clear that there is a real likelihood that he will, in fact, challenge the validity of the deeds because he contends all parties entered into them on the basis of various mistakes.

[4]      In addition, Mr Gerrard Sayes has indicated that, in the event his brother challenges the deeds, he will seek to reopen the settlement as well.  He is also likely to ask the Court to order that Mr Michael Sayes be liable personally in respect of the legal costs that have been incurred by all parties throughout this proceeding.

[5]      The trustees say that if such an order is made there is a real risk that Mr Michael Sayes will not be entitled to receive any payment once a final distribution is made.  They therefore oppose any distribution being made to him at this stage.  They say, however, that their attitude might be different if Mr Sayes is prepared to acknowledge that the deeds are to remain in full force and effect, and if he undertook not to challenge them.

[6]      Mr Sayes is unable to provide that undertaking today, so I find it impossible to meet his request.  It is regrettable that matters have come to this, but the history of this proceeding shows that agreement is very difficult to achieve in relation to the

affairs of this family.  Whilst the validity of the settlement remains unclear, I am not prepared to order the trustees to take the risk  of making a payment that could ultimately have the status of an unsecured advance in Michael’s favour.

[7]      For that reason I decline to make any order that funds be paid out to Mr

Sayes at this stage.

[8]      I record, also, that Mr Sayes has filed a memorandum purporting to amount to an application for an order removing the trustees.  Any such application would need to be formally done, and would need to be supported by evidence on oath.  For that reason I have indicated to Mr Sayes I am not prepared to deal with this issue further.

[9]      I record that two events in other fora are likely to influence the future of this proceeding.   The first is the relationship property claim that Mr Michael Sayes’ former wife has brought against him.  The second is an appeal to the Court of Appeal that Gerrard has filed in relation to one aspect of the oral judgment I delivered on

2 March 2011.[1]

[1] Sayes v Tamatekapua HC Auckland CIV-2007-404-516, 2 March 2011.

[10]     Leave remains to all parties to apply further should they need any further assistance or intervention by the Court.

Lang J

Solicitors:

Barter & Co, Auckland

Glaister Ennor, Auckland

Lucas and Mabin, Auckland
Counsel:

G M Illingworth QC, Auckland

M Macnab, Auckland
C J Wright, Auckland

A Ivory, Auckland

Copy to:
M Sayes, Papakura