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Schischka v Schischka

Schischka v Schischka

Case [2023] NZHC 2275 22 August 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1773

[2023] NZHC 2275

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

Plaintiff

AND

GLENN LAURENCE SCHISCHKA

Defendant

Hearing: 29 June 2023

Appearances:

G J Angus and T P Kelly for the Plaintiffs L J Kearns KC for the Defendant

Judgment:

22 August 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 22 August 2023 at 4.00 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 [2023] NZHC 2275 [22 August 2023]

Introduction

[1] The plaintiffs, John Schischka and Gregory Schischka, and the defendant, Glenn Schischka, are brothers.1 Their mother, Sylvia Schischka, was their last surviving parent. Mrs Schischka passed away on 13 February 2018, aged 95. Both generations of the Schischka family are, or were, profoundly deaf.

[2] Mrs Schischka’s last will dated 10 February 2015 appointed Glenn, Gregory and her solicitor, Ronald Craig, as her executors. After Mrs Schischka’s death, each renounced their positions as executors in favour of Perpetual Guardian, a statutory trustee company, which took on the role of administrator. The Schischka brothers are all beneficiaries under the will, largely receiving equal treatment.

[3] Perpetual Guardian completed administration of the estate without issue, making final distributions to Glenn, John and Gregory on 30 November 2021.

[4] 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, Laurence Schischka, on 17 October 2014.

[5] On 13 February 2015, Mrs Schischka transferred the property to Glenn, by way of gift (the transfer of the property). In this proceeding, John and Gregory challenge the transfer of the property, claiming that Mrs Schischka lacked capacity at the material time, or alternatively that the transfer was brought about by the undue influence of Glenn.

[6] Glenn says that he has lived in the family home for most of his life and describes himself as having been the primary caregiver for his parents. He insists that his mother gifted the property to him by her own initiative and that she had capacity to do so.

1 For convenience, and intending no disrespect to the parties, I will refer to each of the brothers by their given name.

[7] Glenn has applied for defendant summary judgment dismissing the claim, on grounds that:

(a)John and Gregory do not have standing to bring the claim in their capacity as beneficiaries of the estate; or

(b)alternatively, that the claim is an abuse of process on the basis of res judicata because John and Gregory could have, and should have, brought this claim in a proceeding commenced by them in the Waitakere…

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 [2023] NZHC 2275
Case: [2023] NZHC 2275
Decision Date: 22 August 2023

CaseChat Overview and Summary

The case of Schischka v Schischka involved a dispute between brothers John, Gregory, and Glenn Schischka regarding a property transfer. The dispute centred around a property at 25 Curran Street, Herne Bay, Auckland, which their mother, Sylvia Schischka, had gifted to Glenn before her death. John and Gregory contested the validity of this transfer, alleging that their mother lacked capacity or that Glenn exerted undue influence over her. The High Court of New Zealand was tasked with deciding whether John and Gregory had standing to bring the claim and whether the claim was an abuse of process.

The court first addressed the issue of abuse of process, considering whether John and Gregory had a prior opportunity to challenge the property transfer in a Family Court proceeding. The court found that the Family Court did not have jurisdiction to review inter-vivos transactions executed before the appointment of a property manager under the Protection of Personal and Property Rights Act 1988. Therefore, the Family Court proceeding did not provide an opportunity for John and Gregory to bring their current claim, and the claim was not considered an abuse of process.

Next, the court examined whether John and Gregory had standing to bring the claim in their own right. The court ruled that beneficiaries of an estate generally do not have standing to sue on the rights of the deceased, but in special circumstances, they may bring a derivative claim. The court found that John and Gregory did not need to establish special circumstances to bring a derivative claim, as they were seeking declaratory relief. However, the court noted that any claim regarding the property transfer vested in the estate's administrator, Perpetual Guardian. The court held that John and Gregory did not have standing to bring the proceeding in their own right, but they should be given an opportunity to plead special circumstances and join Perpetual Guardian as a party.

The court concluded that the defendant's application for summary judgment was dismissed. Leave was granted to the plaintiffs to join Perpetual Guardian as a second defendant and to file an amended statement of claim. The amended statement of claim should plead the facts relied upon to establish special circumstances for a derivative claim. The proceeding was stayed until an amended statement of claim was filed. The court directed the plaintiffs to provide a copy of the judgment to Perpetual Guardian and made directions for dealing with costs if the parties were unable to agree on them.

Orders