JAMES ANDREW WINTON, VICTORIA HOLLY LIBERTY WINTON AND JAMES HARRIS SAMUEL WINTON s AND VIRGINIA RUTH WINTON

[2019] NZHC 403

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 403

BETWEEN

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

Plaintiffs

AND

VIRGINIA RUTH WINTON

Defendant

Hearing:

21 February 2019

Appearances:

J D Haig for Plaintiffs

C S Chapman for Defendant

Judgment:

21 February 2019

ORAL JUDGMENT OF GRICE J

(Application for adjournment for an application of an order to give proper responses to interrogatories; Date for hearing application: 12 June 20109)

[1]    This is an application by the plaintiffs for an order to give proper responses to interrogatories.1 The interrogatories generally relate to the disposition of assets and funds by the deceased, Rachel Winton, and her related trusts. Mrs Winton is the mother of one of the plaintiffs James Winton and of Virginia Winton. Virginia Winton is the executor of her mother’s estate.

[2]    The plaintiffs say the interrogatories may be relevant, in general terms, to their main assertion that Rachel Winton (together with her trusts) in a settlement agreement following an earlier dispute between the parties agreed that certain assets and funds be available for distribution under her will. These were called the nominated assets.

1      This judgment has been amended for grammar and related matters.

WINTON v WINTON [2019] NZHC 403 [21 February 2019]

[3]    The plaintiffs’ claims rest on the basis that Mrs Winton and her trusts made various loans to the defendant and her children without interest when interest should have been charged. If it had been, the value of the nominated assets which now are to be distributed according to Rachel Winton’s will, would have been greater. They also claim Mrs Winton disposed of proceeds of the nominated assets to other family members. The plaintiffs would have got 15 per cent of those nominated assets under her will.

[4]    The plaintiffs estimate the total short fall of the nominated assets is approximately $576,404.08.2

[5]    The interest claim is said to increase the plaintiffs’ 15 per cent share by the sum of $111,772. The total interest on the advances is said to amount to $745,147.53.3

[6]    In addition, Mr Haig said that further assets or funds (the surplus) should have been included in Mrs Winton’s estate. The loss of the value of those assets or funds is in addition to the interest-based claim. The plaintiffs say this would provide them with a further approximately $86,000 under the will.4 This would be their 15 per cent of those extra funds.

[7]    The interrogatories were largely directed at the non-interest part of the plaintiffs’ claim. Mr Haig claims that the information sought in the interrogatories may be relevant to accounting for the loss of value of the nominated assets in the estate. The interrogatories relate to three main questions.

(a)Did Rachel Winton give, advance or transfer any sum of money between 26 March 2012 and 17 August 2016 to Virginia Winton, her children or associated entities and then seek the details of those advances?

2      Fourth amended statement of claim, paragraph 78.

3      Fourth amended statement of claim, paragraph 79.

4      That amount is set out at paragraph 81 of the fourth amended statement of claim.

(b)This question relates to the Riviera Trust and an asset of $530,000. This asset is referred to in the settlement agreement of 26 March 2012. Details of the composition of the $530,000 is sought as follows:

(i)does the composition of the Riviera Trust’s asset of $530,000 referred to at cl 5 of the settlement agreement between the parties dated 26 March 2012, in particular, was it comprised of cash, real property, chattels or otherwise?

(ii)the details including details of any assets transferred out of the Riviera Trust.

[8]    The next grouping  of interrogatories  relate to the proceeds  of the sale  of  26 Queen Street, Petone for $554,722.35. It asks when the proceeds of that sale were transferred out of the Riviera Trust account.

[9]    The next main grouping of interrogatories and following asks for the dates and the bank accounts (including the bank account numbers) of Rachel Winton which received the proceeds from the sale of her property at 1/87-89 Burns Bay Road, Lane Cove, Sydney on or after 22 September 2013.

[10]   The final group of interrogatories (at W) focuses on any sums paid by Rachel Winton toward living expenses between 1 May 2015 and 17 May 2016. These interrogatories seek details of rent, utilities, food and beverages, insurance travel and medical expenses including where they were paid to and from what bank account.

[11]   As will be obvious, all of the above relate to the claim or assertion by the plaintiffs that monies have disappeared out of the nominated assets in addition to the loss of interest claims.

[12]   When this matter was called this morning Mr Chapman sought an adjournment because he had been taken by surprise by what is said by Mr Haig to be a typographical error in the fourth amended statement of claim.

[13]   The error occurs in paragraph 80(f) of the fourth amended statement of claim. The paragraph refers to particulars at paragraph 47, “71-71”. Paragraph 71 is a paragraph which relates to the interest claim. Mr Haig says it should be obvious that the particulars should have referred back to paragraphs “77-79” which are paragraphs which relate to the general loss of funds from the nominated assets and not the claim based on the failure to pay interest.

[14]   Mr Chapman responded that the fourth amended statement of claim did not extend to the claim for the surplus beyond the failure to pay interest claims. He pointed to earlier iterations of the statement of claim. To support his position, he also said if he had known this he would have sought further particulars. Indeed, he submitted that he had earlier sought further particulars but when he received the second amended statement of claim he considered it was no longer necessary. So he had settled his application for further particulars.

[15]   Mr Haig responds and points to earlier versions of the statement of claim which he says support his position that it was always intended to refer to the surplus and not just the loss of interest claims.

[16]   After further discussion counsel agreed that other applications may result from an amendment to the statement of claim which Mr Haig now intends to file. The matters need to be timetabled.

[17]   Mr Chapman needs time to deal with the further amended statement of claim which will be filed by Mr Haig, to consider his position and make any applications he may wish to pursue.

[18]   Accordingly, in the circumstances I grant Mr Chapman’s application for adjournment and make the following timetable orders:

(a)Any amended statement of claim (fifth amended statement of claim) is to be filed on or before 22 February 2019.

(b)The application for particulars by the defendant is to be filed on or before 1 March 2019.

(c)Notice of opposition is to be filed on or before 8 March 2019.

(d)Any application for discovery by the plaintiffs is to be filed on or before 8 March 2019.

(e)Notice of opposition to the application for discovery is to be filed on or before 15 March.

[19]   I also note that there may be some adjustment required to the notices of opposition in the present application to answer interrogatories. Mr Chapman in any event intends to amend his notice of opposition to make a concession concerning the interrogatories about Mrs Winton’s living expenses. In particular Mr Chapman says, Virginia Winton will provide by agreement details of reimbursement of those living expenses (if any).

[20]   Accordingly, I grant the adjournment and make timetable directions as set out above.

[21]   A date for hearing all of those matters, (the application for particulars, the application to answer interrogatories and the application for discovery) where opposed is set for 12 June 2019. A day has been allocated for the hearing of these applications. Counsel advise it will need a full day.

[22]   For that hearing Counsel are to file submissions in relation to the various applications as follows:

(a)The defendant is to file submissions on the application for particulars on or before 8 May 2019.

(b)The plaintiff is to file submissions in support of the discovery and interrogatories (matters arising in relation to the interrogatories are

likely to be the same as were to be heard today) on or before 8 May 2019.

(c)Both parties are to file their submissions in opposition by 22 May 2019.

(d)Both parties are to file their submissions in reply by 5 June 2019. The plaintiffs are to provide a chronology and common bundle by this date.

(e)Counsel will file their submissions and any authorities and a common bundle in the usual manner and in electronic form.

(f)Mr Haig will take responsibility for liaising with Mr Chapman to prepare a common bundle.

Costs

[23]   Costs are reserved. I note Mr Chapman proposes applying for a wasted costs order.

Grice J