Vincent v Frew

[2013] NZHC 1976

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001269 [2013] NZHC 1976

BETWEEN

JENNIFER CHARLOTTE VINCENT First Intending Plaintiff

MARYANNE WEALLEANS Second Intending Plaintiff

AND

JOHN GORDON FREW First Intended Defendant

STEVEN JAMES FREW Second Intended Defendant

SHIRLEY LAW LIMITED Third Intended Defendant

DAVID OSBORNE HAYWARD, ALEXANDER GEORGE NEILL AND JASON DENNIS COWAN

Fourth Intended Defendants

Hearing:	7 August 2013
Appearances:	R Maze for Intended Plaintiffs J Moss on Instructions from Blenheim Lawyers for Second Intended Defendant Only No Appearance for First, Third and fourth Intended Defendants
Judgment:	7 August 2013

ORAL JUDGMENT OF D GENDALL J

[1]      Before the Court is an application by the first intending plaintiff and the second intending plaintiff for discovery orders against the intended defendants.

[2]      A Notice of Opposition has been filed on behalf of the second intended defendant on 5 August 2013.

VINCENT v FREW [2013] NZHC 1976 [7 August 2013]

[3]      A joint memorandum of counsel has been filed with respect to the application insofar as it affects the second intended defendant.

[4]      So far as the third intended defendant and the third named fourth intended defendant is concerned, Ms Forrest has filed a memorandum dated 6 August 2013 with respect to this matter.

[5]      I now deal with each of the applications in turn.

[6]      It is convenient to deal first with the application insofar as it affects the second intended defendant, Stephen James Frew.  As I have noted above, a joint memorandum of counsel dated 6 August 2013 has been filed with respect to this aspect of the application.

[7]      With regard to that application, by consent the following orders are now made.

(a)      An  order  is  made  compelling  the  second  intended  defendant  to prepare, file and serve affidavits stating whether any documents relevant to: (i) the purported will of Charlotte Mavis Frew; (ii) the power  of  attorney  purportedly  given  by  Charlotte  Mavis  Frew  to either or both of her sons; and (iii) purported administration of the Estate  of  Charlotte  Mavis  Frew;  which  are  or  have  been  in  the intended second defendant’s control and, if they have been but are no longer in the intended second defendant’s control, the intended second defendant’s best knowledge and belief as to when the documents ceased to be in his control and who now has control of them.

(b)If the documents are in the second intended defendant’s control an order is now made to make those documents available for inspection in accordance with r 8.27 to the intending plaintiffs.

[8]      For that application against the second intended defendant, costs are reserved. If there is any issue as to costs with respect to that aspect of the application counsel

may file memorandum sequentially and, in the absence of either party indicating they wish to be heard on the matter, I will decide the issue of costs based on the material then before the Court.

[9]      There is to be no other order made against the second intended defendant at this point.

[10]    So far as the application against the third intended defendant, Shirley Law Limited, is concerned Ms Forrest, in her 6 August 2013 affidavit, has indicated that it has no objection to providing the documentation sought, on an informal basis, provided a direction of the Court is given.

[11]     A direction  is  now made that  the third intended  defendant,  Shirley Law Limited, is to provide, on an informal basis at this point (without the need for a formal affidavit to be filed and served), the documents referred to in paragraph [1] of the applicant’s discovery application here.

[12]     Insofar  as  the  first  named  fourth  intended  defendant,  David  Osborne

Hayward is concerned, this matter is simply adjourned.

[13]     As I understand the position from Mr Maze, counsel for the applicants, no orders at this stage are sought against the second named and third named fourth intended defendants, Alexander George Neill and Jason Dennis Cowan.

[14]     That leaves outstanding the application insofar as it is brought against the first intended defendant, John Gordon Frew.  There is an affidavit of service on the file indicating that this proceeding was served on Mr Frew on 9 July 2013.   No Notice  of  Opposition  or  Statement  of  Defence  has  been  filed  here  by  the  first intended defendant.  That said, effectively unopposed orders are now made against the first intended defendant, John Gordon Frew, as specified in paragraphs [1] and [2] of the discovery application filed herein by the applicants.

[15]     Insofar as costs on this application against the first intended defendant, the third intended defendant and the fourth intended defendant are concerned, if there

are issues concerning costs and these cannot be resolved between the parties directly then they may file memoranda sequentially which are to be referred to me and, in the absence of any party indicating they wish to be heard on the matter, I will decide the question of costs based on the material then before the Court.

...................................................

D Gendall J

Solicitors:

R Maze, Christchurch

Jai Moss, Christchurch

Hardy Jones Clark, Blenheim

DAC Beachcroft New Zealand, Wellington

Copy to First Defendant