Wong v Lim-Yip

[2021] NZHC 3079

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000514

[2021] NZHC 3079

UNDER

the Administration Act 1969

IN THE MATTER OF

the estate of Shue-Wah Lim

BETWEEN

SUEY YIP WONG, STEVEN YIP LIM and SELINA YIP LIM

Applicants

AND

MING LIM-YIP and HONG LIM-YIP

Respondents

Hearing:	15 November 2021
Counsel:	AC Sorrell and KH Morrison for Applicants VTM Bruton QC and PA Brown for Respondents
Judgment:	15 November 2021

JUDGMENT OF DOWNS J

(Interlocutory matters)

This judgment was delivered by me on Monday, 15 November 2021 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland. VTM Bruton QC, Auckland. PA Brown, Auckland.

WONG v LIM-YIP [2021] NZHC 3079 [15 November 2021]

Introduction

[1]    Shue-Wah Lim died 20  February  2019.  Mrs  Lim  has  eight  children:  Suey Yip Wong; Selina Lim Yip;  Steven  Yip  Lim;  Joseph  (Hong)  Lim-Yip; Ming Lim-Yip, Mary Yip Wong; Susanne Lim and Sumy Yip Young.

[2]    Mrs Lim made wills 10 July 2012 and 20 May 2015. These and a related trust, the Shue-Wah Lim Trust,1 divide the children. Suey, Selina and Steven propound the 2012 will.2 Hong and Ming propound the 2015 will.3 Mary, Susanne and Sumy support Hong and Ming.

[3]    Trial was to begin today. Last Friday, I adjourned the trial for a fortnight.4 Today, I instead heard outstanding interlocutory applications. This judgment (briefly) addresses those applications.

Late evidence of Patricia James

[4]    Patricia James is a document examiner. On 29 October 2021, the applicants filed an interlocutory application for permission to call, out of time, evidence from Ms James. Ms James’ proposed testimony concerns documents on the file of Christine Ding. Ms Ding was Mrs Lim’s  solicitor when  she made the  2015 will.  Ms Ding was present when Mrs Lim executed that will.

[5]    The respondents oppose the reception of Ms James’ evidence on the basis of lateness. The respondents are prepared to abandon their opposition provided the Court directs Perpetual Guardian to deliver the original legal files  of  Ms  Ding  (and  Stella Chan, Mrs Lim’s earlier solicitor) to Ms Brown, second counsel for the respondents, and the respondents then have five working days to file an affidavit from Ms Ding.

[6]    The applicants are prepared to agree to the timetable but oppose the file being released this way. They consider the file should remain with Perpetual Guardian, so

1      The Trust.

2      The applicants.

3      The respondents.

4      My Minute of 11 November 2021.

“chain of custody” remains intact. On behalf of the applicants, Ms Morrison takes no issue with Ms Brown’s professionalism. Rather, Ms Morrison says it is important the files be seen  to remain in neutral hands given  the family’s implacable division.    Ms Morrison also expresses concern if the file is released to Ms Brown, she may become a witness.

[7]    The respondents’ proposal is a reasonable one because (a) Ms Ding needs an opportunity to respond; (b) that response will be more easily exercised if the file comes to Ms Brown and (c) Ms Brown undertakes “to hold the complete original legal files at her office, [and] ensure that the files are retained in their original condition”. However, the files should be returned to Perpetual Guardian once Ms Ding has sworn her affidavit. In this way, the applicants may call the evidence of Ms James; Ms Ding has an opportunity to respond to that evidence in a convenient setting; and the file is then returned to a neutral custodian, Perpetual Guardian.

Evidence objections

[8]    Volume 4 of the casebook contains affidavits on behalf of the respondents and applicants  filed  in  relation  to  the  interlocutory   application   to   appoint Perpetual Guardian as interim administrator. The applicants object to the respondents’ affidavits being included in the casebook.5 The applicants contend the evidence is irrelevant to all issues at trial and, in any event, repetitious.6

[9]    The respondents argue the evidence is relevant. They contend the applicants are challenging the 2015 will to control both the estate and Trust. The evidence concerns the conduct of the applicants as trustees of the Trust and Mrs Lim’s attempts to remove Steven and Suey as trustees.

[10]   I am satisfied the evidence is relevant for the reasons identified by the respondents. To the extent it is repetitious, I shall put it aside.

[11]   The respondents seek a direction the affidavits of Steven and Selina Lim be excluded as evidence as each is available for cross-examination at trial and the

5      Evidence Act 2006, s 7.

6      Section 8.

respondents propose to call neither. The applicants do not oppose the direction. I make it.

Undue influence

[12]   The respondents advance the 2015 will by statement of counterclaim dated    2 June 2020. Paragraph 10 of the counterclaim reads, “Mrs Lim was not subject to undue influence when she made the 2015 will”. The applicants filed a two-line statement of defence 1 October 2021. It simply denies this paragraph (and others).

[13]   The applicants contend it is open to them to assert undue influence in relation to the 2015 will as it has long been known this is their contention. On their behalf, Mr Sorrell observes the contention has been “front and centre since day one”. He notes Minutes of Associate Judge Gardiner of 19 March and 22 September 2020 refer to “undue influence” as a trial issue. Mr Sorrell also notes he gave a draft undue influence pleading to Ms Bruton QC last Friday.

[14]   The respondents contend undue influence ought not be an issue at trial unless supported by a pleading. They also contend they would be significantly prejudiced if a pleading of undue influence were permitted at  this late stage.   On their behalf,   Ms Bruton describes aspects of the undue influence claim as a “complete surprise”.

[15]   The applicants should be allowed to ventilate a contention of undue influence. Clearly, they believe the 2015 will is the product of such influence. They have held that view for some time. Not to permit undue influence would imperil the trial as incomplete. However, it is elementary a contention of undue influence must be supported by a pleading. None yet exists. It follows the applicants should have permission to revise their pleadings to include the contention.

[16]   As will be obvious, I am not persuaded the respondents will be significantly prejudiced by the late introduction of the pleading because there is still time for them to respond, now the trial has been adjourned. Ms Bruton says it should remain open to the respondents to adduce oral evidence (rebutting undue influence) without the need to first put anything in writing. I disagree. Trials should not include unnecessary surprises. If the medium of affidavit is too onerous, a short, “Will Say” statement

signed by the witness will suffice. This need identify only the gist of what the witness will say on the topic. That way, the applicants (and I) know what is coming.

Arrangements in relation to some witnesses

[17]   Dr Tony Lowe is a general practitioner. Dr Lowe was Mrs Lim’s doctor. His notes in relation to her comprise tabs 1–15 of volume 4 of the casebook. This material is now to be admitted by agreement.

[18]   If Dr Lowe is required to testify, he wishes to do so by video link rather than in person.   Dr Lowe has a busy practice.   Two  of his patients have COVID-19.    Ms Bruton would prefer Dr Lowe appear in person but does not object to him appearing remotely.

[19]   I direct Dr Lowe appear remotely (if required as a witness). I make this direction to ensure Dr Lowe’s practice is disrupted as little as possible.

[20]   Dr Jane Casey is to be called by the respondents. Ms Bruton seeks to do so either in person or remotely. She wishes that election be “left open”. Mr Sorrell has no objection to Dr Casey being called remotely. Given that, I permit Dr Casey to give evidence remotely if Ms Bruton wishes to call Dr Casey that way. Otherwise, she may call Dr Casey in person.

[21]   Dr Jane Walton is to give evidence for the applicants. She wishes to do so remotely, from the hospital as which she works. Ms Bruton has no objection to that. The request is eminently reasonable. I allow Dr Walton to give evidence remotely.

[22]   Susanne Lim lives in Melbourne. The applicants require her for cross- examination. By agreement, I direct Susanne give evidence remotely from Melbourne.

Ming’s diary

[23]   Mr Sorrell wants this to be brought to court; available for inspection by counsel; and available to any witness in cross-examination. Ms Bruton has no objection to such a direction, which I make.

Witness order

[24]   Mr Sorrell raised concerns about the draft witness order proposed by the respondents. Ms Bruton responds the draft presupposed a remote hearing—in other words, it has been overtaken by events. She also notes witness order is a matter for the party calling the witness. I agree. No direction is necessary.

Reading affidavits at trial

[25]   I repeat my concern, which I expressed to counsel at the hearing, that if witnesses  read  their  affidavits  at  trial,  the  seven-day  estimate  looks  forlorn.     I encourage reflection.

Final pre-trial conference

[26]   By  agreement,  there  is  to  be  such  a  conference  at  2  pm,  Thursday   25 November 2021.

Orders

[27]The application for permission to call Patricia James is granted.

[28]   Perpetual Guardian must deliver the file  of  Ms  Ding  (and  Ms  Chan)  to Ms Brown by 5 pm Tuesday, 16 November 2021. Ms Brown is to hold the files in accordance with her undertaking at [7].

[29]   The affidavit of Ms Ding (in reply to the evidence of Ms James) is to be filed and served by 5 pm, Tuesday 23 November 2021.

[30]   Perpetual Guardian must collect and retain the file of Ms Ding (and Ms Chan) from Ms Brown once [29] has occurred.

[31]The affidavits:

(a)At volume 4 of the casebook at tabs 16–23 are admissible at trial.

(b)At volume 3, tabs 145 and 147 are inadmissible at trial.

[32]   The pleading containing a particularised allegation of undue influence is to be filed and served by 5 pm, Tuesday 16 November 2021.

[33]   The statement of defence to [32] is to be filed and served by 5 pm, Tuesday 23 November 2021.

[34]   Evidence or “Will Say Statements” in response to [32] are to be filed and served by 5 pm Thursday 25 November 2021.

[35]   The respondents’ amended opening submission and chronology are to be filed and served by 5 pm, Friday 26 November 2021.

[36]   Dr Lowe, Dr Walton and Susanne Lim may give evidence remotely. So too Dr Casey at the respondents’ election.

[37]   Ming’s diary is to be brought to court; available for inspection by counsel; and available to any witness in cross-examination.

……………………………..

Downs J