Sen v Public Trust

[2021] NZHC 1840

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-048

[2021] NZHC 1840

UNDER

the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of a property situated at 57 Kingsford Drive, Nelson

BETWEEN

LATIKA DEVI SEN

Applicant

AND

PUBLIC TRUST

First Respondent

MICHAEL ALLAN FRIEND and

JUDITH LEIGH FRIEND as trustees of the Colin and Josie Friend Family Trust Second Respondents

Hearing:

16 July 2021

Appearances:

L S B Acland for applicant

No appearance by or for first respondent P J Bellamy for second respondents

Judgment:

21 July 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                 In this proceeding the applicant, Latika Devi Sen, sues the Public Trust in its capacity as the executor and trustee of the estate of the late Mr Colin Friend, and Michael and Judith Friend in their capacities as  the  trustees  of  the  Colin  and  Josie Friend Family Trust, the principal beneficiary under the late Mr Friend’s will.

SEN v PUBLIC TRUST [2021] NZHC 1840 [21 July 2021]

[2]                 The deceased and the applicant owned a residential property in Nelson as joint tenants. A matter of days before the deceased’s death in April 2016 the joint tenancy was severed. This was done by the deceased acting through his attorney and son, Michael Friend. Michael Friend arranged this through his solicitors, Stallard Law in Nelson.

[3]                 On 25 September 2020 I made interlocutory orders requiring the parties to provide standard discovery. In their affidavit or affidavits of documents the second respondents claimed legal professional privilege in relation to documentation generally said to relate to dealings between Michael Friend and Stallard Law.

[4]                 The applicant challenges the claim for privilege. The applicant says that in moving to sever  the  joint  tenancy  between  Mr  Friend  and  the  applicant, Michael Friend can only have been acting in his capacity as Mr Friend’s attorney (only the parties to a joint tenancy have standing to sever the same). Therefore, the argument goes, the only party who has a right to claim privilege in respect of the exchanges between Michael Friend and Stallard Law in connection with that  issue  is  the Public Trust in its capacity as the executor of Mr Friend’s deceased estate.1

[5]                 On behalf of Michael Friend Mr Bellamy submitted that when he approached Stallard Law —his personal solicitors — he was acting not as his father’s attorney but in his personal capacity in order to get advice and assistance from them as to the scope of his attorneyship, and what he was and was not entitled to do, even although he may also have been looking to take steps in relation to bringing the joint tenancy to an end before his father died. It may well be that when Michael  Friend  approached  Stallard Law in mid-April 2016 he was not fully cognisant of the scope of his rights and obligations as his late father’s attorney and needed guidance in this regard. It may also be that he received advice from Stallard Law in relation to this. However, the view I take is that the predominant purpose for Michael Friend’s approach to  Stallard Law was to establish exactly what could be done to bring the joint tenancy to an end. That being so, he can only have been acting in his capacity as attorney because

1      Evidence Act 2006, s 66(2).

only his father, as one party to the joint tenancy, had any standing to take any step in relation to it.

[6]                 It is fair to record the objective evidence that is before the Court is not entirely decisive. Stallard Law’s ledger reflecting the engagement tends to suggest that it was originally perceived that Michael Friend was engaging the firm in his personal capacity, and that he paid at least one fee note personally. On the other hand, by the time the severance had occurred, and Stallard Law rendered a final fee note on       18 April 2016, this was headed “RUSSELL FRIEND – SEVERING TENANCY”, and the narrative on the fee note suggests that they perceived themselves as having been instructed to take steps to sever the joint tenancy and nothing more.

[7]                 Having concluded that Michael Friend engaged Stallard Law predominantly in his capacity as an attorney for his late father, I accept Mr Acland’s submission that that means that the privilege in respect of any documentation relating to that exercise resides with the Public Trust in its capacity as the executor of Mr Friend’s deceased estate. The Public Trust have waived any claim to privilege.2 Accordingly, the claim that the second respondents make to privilege in respect of any such documentation cannot be sustained.

[8]                 Mr Bellamy provided the Court with copies of all documentation challenged by the applicant in this application. As far as I can see there are only two documents identified in the second respondents’ affidavit of documents which fall into the category of documents which have been successfully challenged, that is to say MJF070 and MJF071, which are, in any event, two copies of the same document.

[9]                 The balance of the documentation to which the second respondents claim privilege seem to me to be privileged. It post dates the exercise of severing the joint tenancy and appears to have come into existence during the time that the second respondents were engaging Stallard Law as their solicitors in this proceeding. It seems to me that it is properly the subject of litigation privilege. This includes all documentation from MJF072 onwards.

2      Evidence Act, s 65.

[10]             Accordingly, the applicant’s application is upheld but on the basis that it relates only to the documents MJF070 and MJF071.

[11]             Notwithstanding that the applicant’s application has resulted only in a challenge to one document being upheld, it appears to me that the applicant is entitled to her costs on a 2B basis. The view I take is that had the challenge been addressed differently on behalf of the second respondents, that is to say a proper analysis, a concession in relation to the documents MJF070 and MJF071 and an explanation to the effect that the balance of the documents in respect of which privilege was claimed were properly the subject of litigation privilege, this interlocutory application would have been unnecessary.

[12]             The applicant is entitled to her costs concerning this interlocutory application on a 2B basis.

Associate Judge Johnston

Solicitors:

Rout Milner Fitchett, Nelson for plaintiff/counterclaim defendant Philip James Bellamy, Nelson for interested parties