Winton v Winton

[2018] NZHC 486

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-419

[2018] NZHC 486

BETWEEN

JAMES ANDREW WINTON

Plaintiff

AND

VIRGINIA RUTH WINTON

Defendant

Hearing:

On the papers

Appearances:

J D Haig for the Plaintiff

C S Chapman for the Defendant

Judgment:

21 March 2018

JUDGMENT OF GRICE J

(Costs (interlocutory applications))

[1]    This is an application by the defendant for costs following the disposal of two interlocutory matters. These matters were applications by the defendant for particulars and an application by the plaintiff for standard and tailored discovery, with a cross- application by the defendant for tailored discovery.

Background

[2]    Associate Judge Smith partly heard the interlocutory applications on 14 August 2017, but the hearing was not completed. Associate Judge Smith is unavailable to deal with the costs matter. I have reviewed the file, including the Associate Judge’s relevant minutes, and I have the material upon which to determine the costs application.

[3]    The interlocutory matters were set down for hearing before Associate Judge Smith on 14 August 2017. The record indicates that part way through the hearing it

WINTON v WINTON [2018] NZHC 486 [21 March 2018]

became apparent that probate of the deceased’s estate which was the subject of the proceedings had been granted in Australia.

[4]    The Judge returned after the morning adjournment and was advised by counsel that the matter would not proceed as it appeared that the interlocutory applications would be resolved by consent. The Minute No. (2) of Associate Judge Smith on 14 August 2017 records that:

[1]        During the hearing today on the particulars and discovery applications, it became apparent that probate has fairly recently (30 June 2017) been issued by the Supreme Court of New South Wales in the estate of the late Mrs Rachel Winton. Mr Chapman told me that he has only fairly recently received a copy of the probate document, and he was able to supply me with a copy of the probate after the morning adjournment.

[2]        The probate document has annexed to it an “inventory of property”, which appears to list the assets in the late Mrs Winton’s estate.

[3]        Mr Haig had not seen the probate document or the inventory at all before this morning’s hearing, and he tells me that his client only saw it for the first time on Thursday or Friday of last week.

[4]        An important issue at the trial of this proceeding will be whether the assets in the late Mrs Winton’s estate have been preserved as required by the settlement agreement, and the plaintiff will clearly now at least have some details of the assets in the estate.

[5]        In those circumstances, counsel sensibly agreed that it would not serve a useful purpose to continue with the particulars and discovery applications before Mr Haig and his client have had an opportunity to consider the probate document and inventory, and make such amendments to the plaintiff’s pleadings as may then seem appropriate.