Watson v Nola HC Auckland CIV-2011-404-931

[2011] NZHC 1931

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-931

IN THE MATTER OF     the Family Protection Act 1995

AND IN THE MATTER OF the Estate of CYRIL NOLA

BETWEEN  RITA PERINA WATSON Plaintiff

ANDRAYMOND CYRIL NOLA, BRIAN JOSEPH NOLA AND PAUL EWEN CALLAGHAN

Defendants

CIV-2011-404-3094

AND UNDER                 the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER OF     the estate of CYRIL NOLA BETWEEN  BERYL MARIAN AITKEN

Plaintiff

ANDRAYMOND CYRIL NOLA, BRIAN JOSEPH NOLA AND PAUL EWEN CALLAGHAN

Defendants

Hearing:         30 November 2011

Counsel:         D Schnauer for Plaintiff in CIV-2011-404-931

D Wackrow for Plaintiff in CIV-2011-404-3094
J Burley for Defendants in both proceedings

Judgment:      30 November 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:      Schnauer & Co, PO Box 31-272, Auckland 0741

WATSON V NOLA HC AK CIV-2011-404-931 30 November 2011

Wackrow Williams & Davies Ltd, PO Box 461, Auckland 1140

Callaghan & Co, PO Box 1434, Auckland

[1]      This judgment is given in relation to interlocutory matters that have arisen in these two related proceedings relating to the estate of Cyril Nola (the proceedings are being case managed together).

Testamentary promises claim

[2]      The testamentary promises claim by Beryl Aitken was listed for mention today to deal with any application for discovery by the defendant executors that had not been resolved between counsel (as directed in [14] of my minute of 3 November

2011).

[3]      Ms Aitken filed an application for particular discovery by the defendants and by non-parties, on 25 November 2011.  The application had been prepared in draft at the  end  of  August.    Up  to  the  time  of  the  case  management  conference  on

3 November 2011 it had produced only some hospital notes. At the time of the filing of the application, nothing further had been provided.   Accordingly,  Ms Aitken sought orders against the defendant as follows:

(a)       That the defendants produce for inspection within 14 days of an order to do so the following documents:

(i)        All medical records, staff/consultant notes, assessment notes, ward notes of Waitakere Hospital (Waitemata District Health Board) relating to Cyril Nola, dating from 27 February 2010;

(ii)      All  medical  records  and  Doctor’s  notes  of  Cyril  Nola’s

General  Practitioner  relating  to  Mr  Nola,  dated  from  1
January 2010;

(iii)      All medical records, staff/consultant notes, assessment notes, ward notes of Glenburn Rest Home and Hospital (Bupa Care Limited) relating to Cyril Nola from 1 March 2010 until date of death;

(iv)      All  documents  and  correspondence,  including  file  notes, relating to the first codicil executed on 5 March 2010 by Cyril Nola kept by and in the possession of Mr Paul Ewen Callaghan and Callaghan & Co Solicitors.

(b)       That  the  defendants  make  such  copies  of  the  documents  as  are requested by the Applicant, at the Applicant’s cost, and provide such copies to the Applicant within 7 days of the request;

(c)       If any of the documents sought have been, but are no longer, in the defendant’s control, the plaintiff seeks an order that the defendants provide an affidavit setting out their knowledge and belief as to when the documents ceased to be in their control, and who now has control of them; and

(d)      For the costs of this application.

[4]      The defendant executors have not opposed the application (save for the application for costs).  On that basis, Ms Aitken does not pursue the application in respect of non-party discovery today, but asks that that be adjourned until the defendants have provided the discovery being sought.

[5]      Mr Burley, for the executors, informs me that some of the documents sought have already been provided, and others have been requested from non-parties but not yet received.   I do not see that that should detract from the making of an order – rather than try to dissect in the short time available today what has and what has not been provided so as to establish what is left to be provided, I record that the order is only to apply in respect of documents which have not already been produced.

[6]      I make orders accordingly in terms of paragraph 1(a)-(c) of the application dated 25 November 2011.

[7]      As already indicated, the only issue over this application is whether to order costs.   Mr Wackrow, for Ms Aitken, seeks costs on the basis that the application could have been avoided had there been a greater cooperation from the defendants. He points to the fact that a draft of the application was prepared and provided to the defendants  on  30  August  2011,  and  their  relative  inaction  in  responding  to Ms Aitken’s  requests,  particularly  since  the  case  management  conference  on

3 November 2011.

[8]      Mr Burley has responded that he had endeavoured to clarify aspects of the request (and hence he took issue with the lack of cooperation), but that appears to me to have been only in respect of a very small portion of the total documents being sought.

[9]      For whatever reason, the defendants have been tardy in responding, and Ms Aitken has incurred costs which could have been avoided.  I take into account that Mr Wackrow is only seeking costs on his appearance at today’s hearing, together with the filing fee on the application.  I consider that Ms Aitken is entitled to those costs, on a scale 2B basis.  I direct accordingly.

[10]     The application in respect of non-party discovery is enlarged to the chambers list at 2.15 pm on 24 February 2012 for further mention, but with leave to Ms Aitken to apply to have that date brought forward (to a telephone conference if need be) if the application has to be pursued ahead of a mediation scheduled for 28 February

2012.

Family protection claim

[11]     I turn now to the family protection claim.  Mr Schnauer, for the plaintiff in that proceeding, Ms Watson, has appeared today to try to gain some traction in unresolved discovery requests concerning, primarily, the extent of the estate.   The defendants were ordered to file and serve an updating affidavit detailing all further financial information as to the extent of the estate, and the present day value of the estate of Phyllis Nola (the deceased’s late wife).  That order was made at the case management conference on 3 November 2011 (by consent) and required the affidavit to be filed by 18 November 2011.

[12]     The defendants filed a further affidavit on 29 November 2011.  In essence, it did no more than refer back to information provided in their affidavit sworn on

28 July 2011.  Mr Schnauer had written to the defendants on 8 August 2011 setting out in detail the matters which his client considered had not been adequately addressed in that first affidavit.  That letter had not been answered in any substantive way by the time of the case management conference on 3 November 2011 (although the executor, Mr Callaghan, had indicated that he would be responding).  As I have already said, at the conference on 3 November 2011 the executors consented to an order that they file an affidavit providing further financial information.  That order clearly  anticipated  a  substantive  response  to  the  requests  made  in  the  letter  of

8 August 2011.

[13]     Mr Schnauer is concerned about delay.   His client was directed to file and serve reply affidavits by 16 December 2011, in anticipation of the mediation due to take place on 28 February 2012 (there is of course the intervention of the Christmas and New Year period).

[14]     Mr Burley has endeavoured to demonstrate to me that the defendants have already provided information sought, in the affidavit of 28 July 2011.  I don’t accept his submissions on this point.  It is clear from the request in the letter of 8 August

2011 that there were a number of aspects of the estate still to be addressed.  If the defendants considered that there was nothing further to provide, they would not have consented to the further affidavit.  At the very least, I would have expected them to have responded directly to each of the matters raised in the letter of 8 August 2011.

[15]     As  there  is  no  formal application  currently before the Court,  setting out particulars of the matters still to be addressed, I consider the appropriate means to advance this is to direct an explicit response to the letter of 8 August 2011.  To the extent that has been provided in the recent affidavit for the executors (and it appears that this is only potentially in respect of the question as to the estate of Phyllis Nola) the executors should refer back to that affidavit.

[16]     I make an order that the executors file and serve an affidavit by 14 December

2011 responding explicitly to the matters identified and requested in the letter of

8 August 2011 and, to the extent that specific documents have been requested and exist, to provide copies of those documents.

[17]     I make a further order that the time for the plaintiff, Ms Watson, to file and serve her affidavits in reply is extended to 3 February 2012.

[18]     Mr Schnauer does not pursue any application for costs in respect of today’s

appearance. Those costs will be reserved to be costs in the cause.

Associate Judge Abbott