Trainor aka Tofilau v Leotuki - [2020] NZHC 2865

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2536

[2020] NZHC 2865

IN THE MATTER Of an application under sections 339(1)(a), 339(4), and 343 of the Property Law Act 2007

BETWEEN

RONGOPAIWAHINE LOIS TRAINOR

(formerly known as RAEWYN LOUISE TOFILAU and also known as RAEWYN TRAINOR

Plaintiff

AND

TIMOTHY JUNIOR LEOTUKI

First Defendant

STEVE TOFILAU
Second Defendant

NICOLAU ALEX TOFILAU

Third Defendant

Hearing: 29 October 2020

Counsel:

N Woods for Plaintiff

U Kuddus for First and Second Defendants No appearance for Third Defendant

Judgment:

2 November 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 2 November 2020 at 4.00 pm,
pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Rice Craig, Papakura
Inder Lynch, Papakura

TRAINOR v LEOTUKI [2020] NZHC 2865 [2 November 2020]

[1] This matter comes before me on the Duty Judge list. In his minute of 19 October 2020, Woolford J granted leave to the defendants to file further evidence. It was, however, noted Mr Woods wished to object to “the admissibility of the affidavit of Mr Daisley on the basis that he did not obtain or even seek to obtain the plaintiff’s waiver of joint solicitor and client privilege.” Woolford J then directed a one-hour hearing to determine issues of admissibility pre-trial, pursuant to r 9.7(5) of the High Court Rules 2016. It transpires that Mr Woods filed a notice of objection of much wider breadth and depth in respect of the proposed briefs of evidence of Mr Daisley and Mr Steve Tolifau.

[2] As indicated to Mr Woods, I did not consider it to be an efficient use of this Court’s time to address all of the objections, noting that, in respect of matters of detail, the trial Judge was much better placed to address those objections. I note in this regard that the matter has been set down for hearing on 17 November 2020.

[3]In the result, I addressed two related objections based on:

(a)privilege; and

(b)hearsay.

[4]I reserve to the trial Judge the remaining issues.

Background

[5] The background to this matter is helpfully set out in the judgment of Gault J, dealing with the application for leave by the defendants to appear to defend the claim.
That background is as follows:1

[1] The plaintiff, Ms Trainor, seeks an order for sale (and associated orders) of a property at 29 Lever Place, Weymouth, Manukau. Ms Trainor is the registered proprietor of a one-quarter share of the property. The defendants, three of her four sons, are each also registered proprietors of a one-quarter share.

1 Trainor v Leotuki [2020] NZHC 1574.

[2] The defendants did not file statements of defence and the proceeding was allocated a formal proof hearing, to take place on 24 June 2020.

[3] At the hearing, however, the first and second defendants (Timothy and Steve) appeared in person. Thus, the formal proof hearing became an application for leave to defend…

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.

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Details

Case: [2020] NZHC 2865
Decision Date: 2 November 2020

CaseChat Overview and Summary

This case involves an application under sections 339(1)(a), 339(4), and 343 of the Property Law Act 2007. The plaintiff, Rongopaiwahine Lois Trainor, is seeking an order for sale of a property at 29 Lever Place, Weymouth, Manukau, which she owns a one-quarter share of. The defendants, her three sons, oppose the application. The legal issues the court was required to decide were whether certain proposed evidence was admissible. Specifically, the court had to determine if the evidence was subject to legal/professional privilege or hearsay. The court found that the evidence relating to the plaintiff's father and the witness Mr Daisley was admissible, while the evidence relating to Mr Taroi Tofilau was not admissible as evidence of the truth of what he is said to have asserted. The court also found that the plaintiff had waived privilege by putting the privileged matter in issue. The court's outcome was that the briefs would need to be amended accordingly, and leave was reserved for the parties to come back for further assistance if necessary. Costs were also reserved.

Orders