Schuitema v Schuitema
[2022] NZHC 3326
•9 December 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-489
[2022] NZHC 3326
IN THE MATTER of an application for an order of probate in solemn form in the Estate of ELIZABETH PETRONELLA SCHUITEMA BETWEEN
ROBERT PAUL SCHUITEMA and
ANTHEA JANE CONNOR as Executors of the Estate of Elizabeth Petronella Schuitema Plaintiffs/Counterclaim First Defendant
AND AND
AND
SARAH SCHUITEMA
First Defendant/Counterclaim First Plaintiff
ROBERT PAUL SCHUITEMA
Second Defendant/Counterclaim Second Defendant
JOHN JAMES SCHUITEMA
Counterclaim Second PlaintiffSUSAN ELISABETH SCHUITEMA
Counterclaim Third Plaintiff
Hearing: 28 November 2022 (by AVL) Appearances:
D Ballinger for Plaintiff/Counterclaim First Defendants (granted leave to withdraw)
S Harrigan for First Defendant/Counterclaim Plaintiff and Second and Third Counterclaim Plaintiffs
G Richards for Second Defendant/Counterclaim Second Defendant
Judgment:
9 December 2022
JUDGMENT OF ASSOCIATE JUDGE LESTER
SCHUITEMA v SCHUITEMA [2022] NZHC 3326 [9 December 2022]
[1] Robert Schuitema (Robert) is the son of the late Elizabeth Petronella Schuitema (Elizabeth). Robert is one of the executors of Elizabeth’s estate.
[2] Robert and Elizabeth were predeceased by Robert’s brother John who was known as Dick. Dick died in 2004.
[3] Dick left three children, John (counterclaim second plaintiff), Sarah (first defendant/counterclaim first plaintiff), and Susan (counterclaim third plaintiff).
[4] Robert’s mother, Elizabeth, left her estate entirely to him. She made no provision for her grandchildren on Dick’s side.
[5] The executors of Elizabeth’s Will, Robert and Anthea Connor (a solicitor) brought this proceeding following Sarah lodging a caveat to prevent the grant of probate of Elizabeth’s Will. The estate brought its application for probate in solemn form in August 2021 with Sarah as the caveator named as first defendant, and Robert as the sole beneficiary, named as the second defendant.
[6] John, Sarah and Susan have counterclaimed under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. They also allege that Elizabeth’s 8 July 2019 Will (the Will) was the result of undue influence from Robert.
[7] It seems Sarah had not had contact with her grandmother for five or six years before her death. However, an acquaintance of Elizabeth, Anita Evans, got in touch with Sarah following Elizabeth’s death expressing her view that Robert’s conduct towards Elizabeth may have influenced her Will. That contact occurred on 28 February 2021. Not quite a year later, Ms Evans provided an affidavit in support of the undue influence claim.
The present applications
[8] Robert, as second defendant, on 1 September 2022 sought discovery of three categories of documents. The first two categories were international travel records of Sarah, John and Susan, they being relevant to their claim that they spent time with
their grandmother on special occasions in both New Zealand and Australia. Those documents were provided after the issue of these proceedings, therefore leaving costs to be dealt with in respect of those categories.
[9] The remaining category of documents Robert seeks is all correspondence between the grandchildren and Ms Evans from 27 February 2021 relating to matters in issue in this proceeding. Robert seeks that such material be provided in its native and/or unredacted form.
Discovery application by Sarah
[10] Sarah’s discovery application was made on 27 September 2022 but withdrawn on 17 November 2022. The outstanding issue is costs.
What Robert must show to obtain an order for discovery
[11] Robert seeks discovery pursuant to r 8.19 of the High Court Rules 2016 (the Rules). The relevant principles were summarised in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd as follows:1
(a)Are the documents sought relevant, and if so how important will they be?
(b)Are there grounds for the belief that the documents sought exist? This will often be a matter of inference. How strong is that inference?
(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?
(d)Weighing and balancing these matters, in the Court’s discretion applying r 8.19, is an order appropriate?
Relevance
[12] Ms Evans’ contact and the information she provided is the foundation for the claim Robert exercised undue influence over Elizabeth. Correspondence between the grandchildren and Ms Evans concerning what she told the grandchildren is
1 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZCH 2760, [2018] NZAR 600 at [14].
relevant. This does not seem to be in dispute as Sarah and Susan have already discovered some correspondence with Ms Evans.
Grounds to believe that more documents may exist
[13] Rule 8.19 of the Rules requires Robert to demonstrate there are grounds for believing the documents sought exist. Robert need not establish the documents exist on the balance of probabilities but he must point to some credible evidence suggesting the documents do exist.
[14] I am satisfied Robert has met that onus. In relation to those emails which appear to be modified in some way, it is reasonable to believe the original email exists. If the email still exists electronically then it can be provided in its native format, assuming those emails are within the control of one of the grandchildren. I will return to this point below.
[15] One email dated 1 March 2021 begins with: “Thanks, Anita”. It is reasonable to believe that the discovered email was in reply to a message which I am told has not been discovered. A further email dated 12 April 2021 also appears to be in reply to an email of Ms Evans which appears not to have been discovered. An email refers to an attachment which is not discovered albeit in submissions Mr Harrigan, counsel for Sarah, said the attachment was privileged.
[16] The emails of 1 March 2021 and 3 March 2021 suggest there was an exchange between the authors of the emails which is sufficient to found a reason to believe further documents exist.
[17] There is merit in Mr Harrigan’s submissions that the edited or modified emails are copies of communications between Robert and Ms Evans. For example, there is an email from Robert to Ms Evans referring to some costume jewellery. Robert should have a copy of that email himself. Mr Harrigan’s clients do not have control over Ms Evans’ documents, they can only provide material that has been provided to them by Ms Evans.
[18] Mr Harrigan’s submission in relation to the issue of apparently modified documents was that he “can only give what I have”. He said he was not responsible for any redactions or amendments to the documents. He asserted that he had gone back to his clients for instructions but he could not “get blood out of a stone”.
[19] When completing discovery, Sarah, John and Susan had an obligation to carry out careful searches for any relevant documents including searching electronic devices. I note one email was sent from Sarah’s iPhone on 1 March 2021.
[20] In correspondence where Robert’s solicitors set out the grounds for believing further documents existed and where those grounds were reflected in Robert’s affidavit in support of his application, it was incumbent upon Sarah, John and Susan to respond to those grounds by way of affidavit.
[21] During the hearing Mr Harrigan referred to Sarah using informal forms of communication such as Messenger and Instagram. The Court’s understanding is that on both of those messaging services, old messages are recoverable. Requiring Sarah, John and Susan to give an affidavit now is really only requiring them to provide the affidavit that should have been provided in support of their notice of opposition.
Is the discovery proportionate?
[22] I anticipate the number of documents that would be covered by the remaining category of discovery will be limited. It will not be difficult to locate the documents as it would appear the correspondence was by email or messaging service.
Balancing of factors
[23] In my view, the circumstances here require John, Sarah and Susan to provide the discovery sought and, in doing so, they can provide their explanation as to why further documents do not exist, if that is the case.
[24] As the discussion above shows, there is reason to believe from emails already discovered that those emails were in reply to messages received or, in one case, there was an attachment that has not been produced.
Order
[25] Accordingly, there is an order that each of Susan, John and Sarah are to, within 15 working days of the date of this Judgment, provide supplementary affidavits of list of documents providing the discovery sought at para 1(c) of the notice of application for particular discovery dated 1 September 2022. In particular, those affidavits are to reply to the matters set out at para [26] of Robert’s affidavit of 1 September 2022 and, if the documents referred to in that affidavit are not in their power, possession or control, explain why that is the case. The affidavits are to confirm that each deponent has checked all devices they have which are capable of sending or receiving emails, including that they have checked for any deleted emails and if any emails have been deleted, that they have taken reasonable efforts to recover the same. They are also to confirm they have checked all other means of electronic communications such as Facebook, Messenger, text or any other messaging service they may have used and taken all reasonable steps to recover any deleted messages for including in their affidavits.
Costs
Costs in respect of the abandoned discovery application
[26] Sarah’s application, while in its heading sought discovery only from the plaintiff estate, also sought such discovery from Robert.
[27] The correspondence sought in Sarah’s application from Robert (as well as the estate) was between Robert and a Ms Nysse.
[28] Discovery is also sought against the estate and Robert in relation to information on Elizabeth’s computer devices.
[29] The issue of material on Elizabeth’s computer was dealt with by the estate. The estate’s solicitors have agreed with Mr Harrigan that the estate’s costs in responding to Sarah’s discovery application in respect of the material on Elizabeth’s computer are to be costs in the cause and I so order.
[30] However, Robert seeks costs in respect of the steps that he took. Robert filed a notice of opposition in which he said that his correspondence with Ms Nysse was included in his affidavit of documents from April 2022. When Susan, Sarah and John’s solicitor requested those documents in June 2022, Robert’s solicitors immediately replied that Robert’s correspondence with Ms Nysse had been disclosed and they provided the discovery references.
[31] Accordingly, Mr Richards, counsel for Robert, submitted that Sarah’s application for discovery from Robert was misconceived. At the hearing I enquired if Sarah’s application had been preceded by a “letter before action”, that is in effect a warning that unless the correspondence with Ms Nysse was produced, Sarah would bring an application. I was told Sarah’s application was not foreshadowed and I agree with Mr Richards that the application should not have been brought. Robert’s solicitor’s letter of early June 2022 provided the document references for the already discovered material.
[32] It is not a matter, as Mr Harrigan submits, of Sarah no longer asking the Court to determine the merits of her application. It has been determined through her abandoning or withdrawing it.
[33] Sarah’s abandonment of her application came after Robert’s counsel filed his submissions pointing out that Ms Nysse’s material had already been provided. In my view, the abandonment came too late to avoid costs altogether.
[34]Rule 14.8 of the High Court Rules 2016 provides:
Costs on interlocutory applications
(1)Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—
(a)must be fixed in accordance with these rules when the application is determined; and
(b)become payable when they are fixed.
(2)Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.
(3)This rule does not apply to an application for summary judgment.
[35]McGechan on Procedure provides:2
An interlocutory application may be “determined” either by decision of the Court or by another mechanism such as an agreement of the parties or withdrawal by leave ...
[36] To the extent that Mr Harrigan, counsel on behalf of Sarah, relies on Winton v Winton as being authority for the proposition that Sarah no longer asks the Court to determine the merits of her application.3 That decision is not authority for the proposition Mr Harrigan advanced. At [16] of Winton the Court said:
[16] I am of the view that the applications are at an end and so are “determined”. That “determination” may be by decision of the Court, or by another mechanism. In the present case, it was by agreement by counsel, or more specifically, withdrawn by leave.
(footnotes omitted)
[37] The Court adopted the reasoning of Duffy J in Ip v Ip, that being the authority relied on in McGechan for the proposition set out at [35] above.4
[38] Accordingly, I am satisfied Sarah should meet Robert’s costs in respect of her application on a 2B basis as sought by Mr Russell. There is an order accordingly.
Costs on Robert’s application
[39] Robert has been successful in obtaining the orders he has sought in relation to the remaining category of discovery.
[40] In accordance with r 14.8 set out above, there is no reason why costs should not follow the event on a 2B basis together with disbursements as fixed by the Registrar. I so order.
[41] I record that in relation to both costs applications, that is, Robert’s application for costs on his own application, and in respect of the abandoned application by Sarah,
2 Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR14.8.02].
3 Winton v Winton [2018] NZHC 486, (2018) 24 PRNZ 1.
4 Ip v Ip [2016] NZHC 528
Robert sought increased costs. I do not see this is a case for increased costs. While it could be said there could have been more co-operation between counsel in respect of discovery, I do not see that as warranting an uplift for what were ultimately a reasonably straightforward applications.
Associate Judge Lester
Solicitors:
Oakley Moran, Wellington (for Plaintiffs)
Harrigan Lawyers, Christchurch (for First Defendant/Counterclaim First Plaintiff)
Macalister Mazengarb, Wellington (for Second Defendant/Counterclaim Second Defendant)
Copy to counsel:
P Chisnall and G Richards, Barristers, Wellington (for Plaintiffs)
G Richards, Barrister, Wellington (for Second Defendant/Counterclaim Second Defendant)
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