Ward v Ward - [2020] NZHC 11

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-374

[2020] NZHC 11

UNDER the Wills Act 2007 and the Trustee Act 1957

BETWEEN

RUSSELL STUART WARD

Plaintiff

AND

CHRISTOPHER ALLAN WARD

First Defendant

DIANE LORRAINE JAMES

Second Defendant

CIV-2019-419-81

BETWEEN

CHRISTOPHER ALLAN WARD and DIANE LORRAINE JAMES

Plaintiffs

AND

RUSSELL STUART WARD

Defendant

Hearing: 4 October 2019

Appearances:

Plaintiff in CIV-2018-419-374 and Defendant in CIV-2019-419-81 in person

Mr K I Bond and A M Kalinowski for the Defendants in CIV-2018-419-374 and Plaintiffs in CIV-2019-410-81

Judgment:

14 January 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 14 January 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………

WARD v WARD AND JAMES [2020] NZHC 11 [14 January 2020]

[1]Russell Stuart Ward seeks summary judgment in a proceeding (CIV-2018-419-

374) against his siblings, Christopher Allan Ward and Diane Lorraine James. For convenience, I will refer to them by their names used in the evidence (Russell, Allan and Diane). In essence, Russell’s claim relates to Allan and Diane’s role in persuading their mother, June Ward, to settle property in a trust, appoint Allan and Diane as trustees, and to change her will removing Russell as a beneficiary. He also claims breach of trust.

[2] In turn, Allan and Diane seek to strike out Russell’s claim or alternatively an order for security for costs.

[3] In a separate proceeding (CIV-2019-419-81), Allan and Diane seek summary judgment in a claim against Russell for an order for possession of, and outgoings relating to, a property at 55 Vardon Road, Hamilton, which they inherited from their mother.

[4]In turn, Russell applies to strike out or stay their claim.

[5] These four applications were heard together. Russell had also filed an application for production of documents in his proceeding, but he accepted this could be deferred and dealt with if summary judgment were not granted and his claim progressed as a standard proceeding.

Factual background

[6] The parties are the three children of Donald Arthur Ward and June Ward. In wills written in 1982, Donald Arthur Ward and June Ward each left their respective estates to the other or, if the other predeceased, then the entire estate was to be divided equally between the three children.

[7]Donald Arthur Ward died in 1996 and accordingly left his estate to June Ward.

[8] After her husband died, June Ward sold the family home at 21 Ann Street, Hamilton, to Allan. In 1997 she built a new house in Vardon Road, Hamilton. That was later found to be a leaky home.

[9] In 1997 June Ward appointed Allan and Diane as co-executors of her estate. Russell was living overseas at the time.

[10] June Ward settled the June Ward Family Trust (the Trust) on 17 March 1997 and appointed Allan and Diane as trustees. The beneficiaries include June Ward, her children and their children. June Ward gifted the family holiday…

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.

Continue reading Ward v Ward

Details

AGLC: Ward v Ward [2020] NZHC 11
Case: [2020] NZHC 11
Decision Date: 14 January 2020

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton Registry, was presented with two interrelated cases involving the Ward siblings: Russell Stuart Ward, Christopher Allan Ward, and Diane Lorraine James. The disputes centered around the estate of their late mother, June Ward, and her property holdings, particularly the house at 55 Vardon Road, Hamilton. The legal issues revolved around claims of undue influence, breach of trust, and possession rights. Russell alleged that Allan and Diane had unduly influenced June Ward to change her will and appoint them as trustees of a family trust, thereby excluding Russell from inheritance. Allan and Diane sought possession of the Vardon Road property, arguing that Russell's occupancy was based on an expired agreement. The court dismissed Russell's application for summary judgment, noting that his claims faced significant legal and evidential hurdles. It also declined to strike out Russell's claim but directed him to file an amended statement of claim that complied with the High Court Rules. The court ruled that Allan and Diane were entitled to an order for possession of the Vardon Road property, rejecting Russell's claim to a one-third share as a basis for continued occupancy. The court also dismissed Russell's application to strike out Allan and Diane's claim and ordered him to vacate the property by a specified date. Costs were awarded to Allan and Diane for the successful applications, with further directions provided for case management and future proceedings.

Orders