Yozin-Smith v Yozin - [2022] NZHC 2750

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1880

[2022] NZHC 2750

BETWEEN
NORMA HAZEL YOZIN-SMITH

Plaintiff

AND

ROSALIE MAY YOZIN

First Defendant

HELEN JEAN MENZIES

Second Defendant

Hearing: 15 August 2022

Appearances:

Elizabeth Heaney for the Plaintiff Melissa Allan for the Defendants

Judgment:

26 October 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 26 October 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Morgan Coakle (E M R Heaney/S J Telford)), Auckland, for the Plaintiff Patterson Hopkins (Luke Dixon), Auckland, for the Defendants

Counsel:
Melissa Allan, Barrister, Auckland, for the Defendants

YOZIN-SMITH v YOZIN [2022] NZHC 2750 [26 October 2022]

Introduction

[1] This judgment determines two interlocutory applications. The first application is brought by the plaintiff in these proceedings, Ms Norma Yozin-Smith. It seeks to join defendants to the proceedings.

[2] The second application is brought by Ms Rosalie Yozin and Helen Menzies, respectively being the first and second defendants in these proceedings.1 It seeks strike out or summary judgment of Norma’s second and third causes of action against them.2

Background

[3] Norma, Rosalie and Helen are the daughters of Zorka Yozin and Milan Yozin. They also have a brother, Maurice, who is not involved in these proceedings.

[4] Rosalie lived with Zorka for most of her life and became Zorka’s carer in Zorka’s later years. On 12 September 2013, Zorka appointed Rosalie her enduring power of attorney. Rosalie was also an authorised signatory on Zorka’s bank accounts.

[5] Zorka died on 12 October 2014, leaving a will dated 6 October 2011. In that will, Zorka appointed Norma, Rosalie and Helen executors of her estate. They are also the estate’s sole beneficiaries.

[6] In 2015, Maurice brought a claim against the estate under the Family Protection Act 1955. Those proceedings eventually settled in October 2018.

[7] Also after Zorka’s death, a dispute arose regarding Milan’s estate. Milan died in 1975, leaving Zorka a life interest in several lots of land in Swanson, Auckland.

1 Given the two applications, by which the parties are both variously “applicants” and “respondents”, I will at times for convenience refer to Rosalie and Helen collectively as “the defendants”. This label does not reflect any pre-determination as to whether they should be joined as defendants to the substantive proceeding in their capacities as executors of the deceased’s estate.
2 Given the near commonality of surnames in these proceedings, and meaning no disrespect, I will refer to all relevant parties by their given names.

Norma, Rosalie, Helen and Maurice were entitled to the residue of the estate in equal shares. The dispute arose because there was a proposal for the Swanson property to be sold; Rosalie and Helen wished to retain certain lots of the land, but the siblings could not reach an agreement on the value of those lots.

[8] In 2016, Rosalie and Helen brought proceedings in respect…

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 Yozin-Smith v Yozin

Details

AGLC: Yozin-Smith v Yozin [2022] NZHC 2750
Case: [2022] NZHC 2750
Decision Date: 26 October 2022

CaseChat Overview and Summary

Norma Yozin-Smith, a beneficiary of Zorka Yozin's estate, sought to join Rosalie and Helen Yozin, the other beneficiaries and executors of the estate, as defendants in her proceedings against Rosalie. The defendants opposed Norma's application and sought summary judgment and/or strike-out of Norma's claims against Rosalie. The court had to determine whether Norma could bring a derivative action on behalf of the estate, whether the claims were statute-barred, and the effect of certain High Court Rules on the application for summary judgment. The court concluded that Norma had an arguable case that special circumstances existed to allow her to bring the derivative action on behalf of the estate. The court also found that Norma had an arguable case that she was entitled to bring a derivative claim, that the proceedings were properly constituted, that the correct procedure was followed to join Rosalie and Helen as defendants, and that the substantive proceedings were filed within the relevant period required under the Limitation Act. The court dismissed the defendants' application for summary judgment and strike-out of Norma's second and third causes of action. The court also ruled that Norma was not obliged to make an election in respect of the amended statement of claim, as between the first cause of action and the second and third causes of action. Finally, the court decided that a separate preliminary hearing in respect of the limitation issue should not be held.

Orders