Winton v Winton - [2019] NZHC 1394

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-419

[2019] NZHC 1394

IN THE MATTER of a claim for damages for breach of contract

BETWEEN

JAMES ANDREW WINTON, VICTORIA HOLLY LIBERTY WINTON AND JAMES HARRIS SAMUEL WINTON

Plaintiffs

AND

VIRGINIA RUTH WINTON as executor of the estate of RACHEL MAY WINTON Defendant

Hearing: 12 June 2019

Appearances:

J D Haig for Plaintiffs

C S Chapman for Defendant

Judgment:

18 June 2019

JUDGMENT OF COOKE J

(Particulars, discovery and interrogatories)

[1] This is a further interlocutory argument arising in a long-standing dispute between family members. The dispute is now focused on the estate of Rachel Winton, and compliance with a settlement agreement dated 26 March 2012 entered before Mrs Winton’s death.

[2]Before me there are effectively two sets of interlocutory applications:

(a)An application by the defendant that the plaintiffs provide particulars of a key allegation made in the plaintiffs’ fifth amended statement of claim.

WINTON v WINTON [2019] NZHC 1394 [18 June 2019]

(b)Applications by the plaintiffs for discovery, and for answers for interrogatories, which the plaintiffs say need to be provided and answered before particulars can be given.

[3] The applications first proceeded before Grice J on 21 February 2019, but after initial argument they were adjourned to allow counsel for the defendant to take time to assess a change to the pleadings now formulated in the fifth amended statement of claim.1

Background

[4] Mrs Winton died on 17 August 2016 aged 93. The first plaintiff is her son, and the defendant is her daughter. The other plaintiffs are the first plaintiff’s children. The defendant is the executor of Mrs Winton’s estate. The defendant lives in Australia, as did Mrs Winton before her death.

[5] The original disputes emerged in association with family trusts that had been earlier established. It would appear that when first established they were to benefit the first plaintiff and the defendant. But steps were taken that appeared to substantially remove the first plaintiff’s entitlements. Three new trusts had been established named the Riviera Trust, the Petone Trust and the Terrace Trust in that connection.

[6] The parties then attended a mediation, and a proposed settlement emerged. Unfortunately, there was then disagreement as to whether the matter had been settled at that mediation. The defendant then took proceedings attempting to enforce the settlement (CIV-2011-485-854). During the hearing of those proceedings before Gendall J the parties were encouraged by the Court to resolve their dispute. The agreement that had emerged from the mediation was then further amended and then entered by the parties (the Settlement Agreement).

[7] The terms of the Settlement Agreement effectively identify an interest that the first plaintiff would have in Mrs Winton’s estate, and included clauses directed to that end. For example, one of the important clauses provided as follows:

1 Winton v Winton [2019] NZHC 403.

7.5 Rachel agrees she will not gift to any family member either of the following…

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 Winton v Winton

Details

AGLC: Winton v Winton [2019] NZHC 1394
Case: [2019] NZHC 1394
Decision Date: 18 June 2019

CaseChat Overview and Summary

In the case of Winton v Winton, the court dealt with an ongoing family dispute focused on the estate of Rachel Winton and compliance with a 2012 settlement agreement. The plaintiffs, James Andrew Winton, Victoria Holly Liberty Winton, and James Harris Samuel Winton, alleged that the defendant, Virginia Ruth Winton as executor of Rachel Winton's estate, breached the settlement agreement by entering into interest-free loans with family members and disposing of the proceeds of specified assets. The defendant sought particulars of the plaintiffs' allegations, while the plaintiffs sought further discovery and interrogatories to support their claims. The court found that there had been a change in circumstances warranting further discovery and interrogatories. The key issue was whether particulars should precede discovery and interrogatories, or vice versa. The court concluded that discovery and interrogatories should precede particulars, as the plaintiffs' claims had a sufficient basis, albeit thin, to warrant further investigation. The court ordered specific discovery and interrogatory responses and directed that particulars be provided after these steps were completed.

The court ordered particular discovery of bank statements, cash books, and documents relating to the Riviera Trust, as well as answers to specified interrogatories. The plaintiffs were directed to provide particulars of their claims regarding the disposition of assets and the reduction of the estate's net value within 20 working days of receiving the discovery and interrogatory responses. A case management conference was scheduled to set the matter down for trial. The court reserved the question of costs, suggesting they should be treated as costs in the cause, to be determined based on the outcome of the plaintiffs' allegations.

Orders