Vincent v Mindel HC Auckland CIV 2010-404-6275

[2011] NZHC 1853

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-6275

BETWEEN  AVIONNE JOY VINCENT Plaintiff

ANDCOLIN DAVID MINDEL AND ALAN JOHN MANU WADAMS

Defendants

Hearing:         6 and 27 July 2011

Counsel:         GJ Mercer for plaintiff

PJL Hunt and JE Tomlinson for defendants

Judgment:      19 August 2011 at 4:00 AM

JUDGMENT OF ASSOCIATE JUDGE FAIRE

[on applications to strike out, or for summary judgment or for security for

costs]

This judgment was delivered by me on 19 August 2011 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Gellert Ivanson, PO Box 25 239, Auckland

McElroys, PO Box 835, Auckland 1140

VINCENT V MINDEL HC AK CIV 2010-404-6275 19 August 2011

The applications

[1]      The defendants apply for orders:

(a)       Striking out the proceeding; or

(b)      Entering summary judgment against the plaintiff; or

(c)       Seeking security for costs.

[2]      The  application  to  strike  out  or  for  summary  judgment  alleges  that  the statement of claim:

(a)       Is frivolous, vexatious or an abuse of process because the cause of action is:

(i)       Statute-barred or barred by analogy; and/or

(ii)      So untenable that it cannot possibly succeed; and/or

(iii)     An abuse of process; and

(b)      Discloses no reasonably arguable cause of action having regard to the

14 listed matters that I will later refer to; and

(c)       Is additionally an abuse of process having regard to the five listed matters that I will later refer to.

[3]      With  respect  to  the  security  for  costs  application,  the  parties  reached agreement on the orders that I should make if the statement of claim is held to survive the strike out and summary judgment applications.   For that reason, the security for costs application is not separately analysed in this judgment.

The proceeding

[4]      This proceeding involves claims arising out of the administration of the estate of Cedric Raymond Vincent, who died on 28 September 1967.  He left a will which was made on 20 July 1967.  His daughter, the plaintiff, was a beneficiary in the late Mr Vincent’s  estate.     The  late  Mr Vincent  appointed  the  Guardian  Trust  and Executors Company of New Zealand as his executor and trustee.

[5]      On 14 August 1978 the trustee company was replaced by FH Rodway and AJM Wadams as joint trustees.  Mr Rodway and Mr Wadams were then partners in the  accountancy  firm,  Staples  Rodway,  later  Staples  Rodway  Limited.     The defendant, Mr CD Mindel, became a partner in Staples Rodway in June 1978 and became a consultant in January 2000.  Mr Mindel acknowledges being involved in the  preparation  and  managing  the  estate’s  annual  accounts  and  annual  taxation returns. There is some dispute as to how wide his particular involvement was.

[6]      The statement of claim alleges one cause of action.   It alleges that both defendants owed duties as fiduciaries to the beneficiaries of Mr Vincent’s estate, including the plaintiff.   It is alleged that they both breached their obligations as fiduciaries in the course of the administration of the estate.  The actions that are the…