Schischka v Schischka - [2024] NZHC 3829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1773

[2024] NZHC 3829

UNDER Part 18 of the High Court Rules

IN THE MATTER OF

the property at 25 Curran Street, Herne Bay, Auckland

BETWEEN

JOHN CRAIG SCHISCHKA and GREGORY ERROL BUCHAN SCHISCHKA

Plaintiffs

AND

GLENN LAURENCE SCHISCHKA

Defendant

Hearing:
27 November 2024

Further submissions 28 November 2024 and 11 December 2024

Appearances:

T P Kelly for the Plaintiffs

L J Kearns KC/ J S Langston for the Defendant

Judgment:

13 December 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 13 December at 3 pm Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors/Counsel:
Morris Legal, Auckland
Shieff Angland, Auckland Bastion Chambers, Auckland

SCHISCHKA v SCHISCHKA [2024] NZHC 3829 [13 December 2024]

Introduction

[1] The plaintiffs, John Schischka and Gregory Schischka, and the defendant, Glenn Schischka, are brothers.1 Their mother, Sylvia Schischka (Mrs Schischka), was their last surviving parent.

[2] Mrs Schischka’s last will dated 10 February 2015 appointed Glenn, Gregory and her solicitor, Ronald Craig, as her executors. The Schischka brothers are all beneficiaries under the will, largely receiving equal treatment.

[3] After Mrs Schischka’s death, each renounced their positions as executors in favour of New Zealand Guardian Trust Ltd (NZGT), a statutory trustee company which took on the role of administrator. NZGT later became known as Perpetual Guardian.

[4] In October 2019, Perpetual Trust Limited (Perpetual Trust) was substituted as administrator of the estate, in place of NZGT, following the restructure of Perpetual Guardian.2 Perpetual Trust completed administration of the estate without issue, making final distributions to Glenn, John and Gregory on 30 November 2021.

[5] Mrs Schischka’s estate did not include the family home at 25 Curran Street, Herne Bay, Auckland (the property). Mrs Schischka became the sole registered proprietor of the property after the death of her husband. On 13 February 2015, Mrs Schischka transferred the property to Glenn, by way of gift (the transfer of the property).

[6] On 15 September 2022, John and Gregory commenced this proceeding challenging the transfer of the property. They claim that Mrs Schischka lacked capacity at the material time, or alternatively, that the transfer was brought about by the undue influence of Glenn.

1 For convenience, and intending no disrespect to the parties, I will refer to each of the brothers by their given name.
2 Re New Zealand Guardian Trust Company Ltd [2019] NZHC 2548.

[7] Glenn applied for summary judgment dismissing the claim, including on the ground that John and Gregory do not have standing to bring the claim in their capacity as beneficiaries of the estate.

[8] On 22 August 2023, I dismissed the application for summary judgment.3 I applied the principle that beneficiaries of an estate do not generally have standing to sue on the rights of the deceased, but in special circumstances may bring a derivative claim.4 The special circumstances which justify a derivative claim…

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 Schischka v Schischka

Details

AGLC: Schischka v Schischka [2024] NZHC 3829
Case: [2024] NZHC 3829
Decision Date: 13 December 2024

CaseChat Overview and Summary

The case Schischka v Schischka before the High Court of New Zealand Auckland Registry involves the plaintiffs, John Craig Schischka and Gregory Errol Buchan Schischka, who are challenging the transfer of a property at 25 Curran Street, Herne Bay, Auckland. They claim that their mother, Mrs Sylvia Schischka, lacked capacity at the time of the transfer, or alternatively, that the transfer was influenced by undue influence from their brother, Glenn Laurence Schischka. Glenn, who was the recipient of the property, has applied for summary judgment to dismiss the claim, arguing that John and Gregory lack standing to bring the claim. The primary legal issues in this case include the standing of John and Gregory to bring the claim, the appropriateness of substituting Perpetual Trust Limited as the plaintiff instead of John and Gregory, and the potential prejudice to Glenn from such a substitution.

The court considered whether John and Gregory had standing to bring the claim, noting that while beneficiaries generally do not have standing to sue on the rights of the deceased, they may bring a derivative claim under special circumstances. The court found that John and Gregory did have standing to bring a derivative claim but needed to plead and prove the special circumstances justifying such a claim. The court also examined the principle of joinder under Rule 4.56 of the High Court Rules 2016, which allows for the substitution or addition of parties if it is necessary to adjudicate on and settle all questions involved in the proceeding. The court determined that Perpetual Trust, as the administrator of Mrs Schischka's estate, ought to have been joined from the outset and that substituting Perpetual Trust as the plaintiff would be in the interests of justice, removing the need to address the derivative claim issue.

The court further analyzed whether substituting Perpetual Trust would prejudice Glenn's ability to mount a limitation defence, considering the potential for an extension of the primary limitation period under the Limitation Act 2010. The court concluded that Perpetual Trust had already filed a separate proceeding before the critical date, ensuring it could exercise any rights under the Limitation Act. The court found that there would be no material impact on Glenn's limitation defences if Perpetual Trust were substituted as the plaintiff, and that the substitution would promote efficiency and avoid further delays in the proceeding. Consequently, the court ordered that John Craig Schischka and Gregory Errol Buchan Schischka, along with New Zealand Guardian Trust Limited, be removed as plaintiffs, and that Perpetual Trust Limited be joined as the plaintiff. Perpetual Trust was required to file an amended statement of claim by 31 January 2025, and a case management conference was scheduled for the first available date thereafter. Glenn was to bear the costs for steps in the proceeding since the summary judgment hearing, relating to the issue of the identity of the parties.

Orders