McKendry v Perawiti

[2023] NZHC 393

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-10

[2023] NZHC 393

UNDER

the High Court Rules 2016

IN THE MATTER

of an application for freezing orders

BETWEEN

STEVEN WAYNE MCKENDRY

Plaintiff

AND

GEORGINA ANN PERAWITI

Defendant

Hearing:	On the papers
Appearances:	N Jessen and A R J Sinclair for the Plaintiff
Judgment:	3 March 2023

JUDGMENT OF COOKE J

(Without notice freezing orders)

[1]                 The plaintiff’s without notice interlocutory application for freezing orders under r 32.5 of the High Court Rules 2016 has been referred to me as Duty Judge.

[2]                 The application is filed at the same time as a statement of claim, and is supported by an affidavit from the plaintiff dated 2 March 2023 as well as a memorandum of counsel of the same date. An undertaking from the plaintiff, and the proposed order has also been filed.

Background

[3]                 The plaintiff and defendant have been in a long term relationship, and more recently they have married following the defendant’s cancer diagnosis.

MCKENDRY v PERAWITI [2023] NZHC 393 [3 March 2023]

[4]                 The plaintiff and defendant are joint owners of the life insurance policy with AIA New Zealand. The amount under the policy is payable if one of them dies, or becomes terminally ill. In the event of death the other owner receives the payment. With terminal illness the payment is made to both of the insured jointly.

[5]                 The defendant has been diagnosed with terminal lung cancer. The plaintiff says that as her cancer, and the treatment of it has progressed her behaviour has become more erratic and irrational. Most recently the plaintiff says that the defendant has made a claim on the  insurance  policy  which  has  been  paid  out  by  AIA  New Zealand into a bank account in the sole control of the defendant, and that the defendant has informed the plaintiff that he will not benefit from the pay-out. It is also alleged that the defendant and one of her daughters forged the plaintiff’s signature on the claim form and/or witnessed that forged signature leading to the pay-out being made. The plaintiff also says that the defendant has been dissipating funds from the account in which the amount has been paid, and he has produced evidence in the form of copies of bank statements demonstrating the receipt and dissipation of funds.

[6]                 In the circumstances the plaintiff applies for a freezing order preventing any further dissipation of the funds from this account other than for normal living expenses, payments in the ordinary course of business, or for legal expenses relating to the freezing order.

Relevant principles

1. Rule 32 relevantly provides:

32.5     Order against judgment debtor or prospective judgment debtor or third party

(1)This rule applies if—

…

(b)an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in—

1. the court;

…

(4) The court may make a freezing order or an ancillary order or both  against a … prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a … prospective judgment will be wholly or partly unsatisfied because—

…

(b)     the assets of the …, prospective judgment debtor … might be—

…

(ii)     disposed of, dealt with, or diminished in value (whether the assets are in or outside New Zealand).

…

[8]                 In the circumstances of the present application the following questions need to be addressed:1

(a)Whether the plaintiff has a good arguable case, meaning a case that is sufficiently plausible to warrant the making of the order.

(b)Whether there is a danger that property that may be utilised to meet a judgment debt will be disposed of, dealt with or diminished in value.

(c)Where the balance of convenience lies.

Assessment

[9]                 I accept the plaintiff has satisfied the requirement to show a good arguable case. The proceeds of the insurance policy are the joint property of the plaintiff and defendant. Based on the plaintiff’s evidence the defendant has converted that property for her sole use. Moreover it would appear that deception was involved in so converting the property by the use of a false signature. At the very least this would establish a good arguable case of conversion.

[10]             I am also satisfied that the plaintiff satisfied the requirement that the assets will be further dissipated if a freezing order is not made. The evidence that the defendant has refused the plaintiff access to the funds and has been making significant payments

1      Murren v Schaeffer [2018] NZCA 318, (2018) 24 PRNZ 285 at [14]–[17].

out of the account is sufficient to satisfy this requirement. I also accept that this provides good reason for this application to be made without notice.

[11]             Finally I accept the balance of convenience is in favour of the making of the orders in favour of the plaintiff. No doubt the diagnosis of terminal cancer has been extremely upsetting for everybody, particularly the defendant. It is unfortunate that court proceedings have become necessary. I hope other members of the whānau may now become involved so that any further court proceedings can be avoided. But I accept that orders should be made in the plaintiff’s favour given the events that have been described in the evidence so that the position can be preserved.

[12]             For these reasons the application order in the proposed form is granted. That order is to apply in relation to the defendant’s bank account. The order is made until the Judge’s Chambers List on 20 March 2023. The defendant has leave to apply to discharge the order before that time by application made on notice. I direct the plaintiff to serve a copy of the materials filed in support of this application when the proceedings are served.

Cooke J

Solicitors:
Cooper Rapley Lawyers, Palmerston North for the Plaintiff