Groombridge v Blanche [2020] NZHC 2394 (15 September 2020)

Last Updated: 7 October 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2033 [2020] NZHC 2394

BETWEEN	HENRY GEORGE JAMES GROOMBRIDGE by his litigation guardian Pamela Peijie Ma Plaintiff
AND	ELEANOR BLANCHE Defendant

Hearing:	11 August 2020
Counsel:	C Cai and E Y Y Ho for plaintiff P J Stevenson for defendant
Judgment:	15 September 2020

JUDGMENT OF KATZ J

This judgment was delivered by me on 15 September 2020 at 3:00pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Douglas Burgess, Auckland

Focus Law, Auckland

Counsel: P J Stevenson, Barrister, Auckland

GROOMBRIDGE v BLANCHE [2020] NZHC 2394 [15 September 2020]

Introduction

• [1] Eleanor Blanche and Henry Groombridge were married on 13 March 2004 and separated on 14 March 2007. On 11 April 2007, they entered into a relationship property agreement pursuant to the Property (Relationships) Act 1976. Mr Groombridge alleges that that agreement has been breached. He seeks specific performance and damages. Because Mr Groombridge lacks capacity, his current wife, Pamela Ma, has been appointed as his litigation guardian.

• [2] Ms Blanche has applied to the Court to remove Ms Ma as Mr Groombridge’s litigation guardian on various grounds, including that Ms Ma’s interests conflict with those of Mr Groombridge. The removal application is opposed by Mr Groombridge/Ms Ma.

Background

• [3] The relationship property agreement records that Mr Groombridge is entitled to reside in a Newmarket apartment owned by Ms Blanche (or a comparable apartment) for the rest of his life. Ms Blanche also agreed to maintain Mr Groombridge “in a similar lifestyle to that he currently enjoys”, by meeting his housing, food, utilities and other expenses. The agreement makes clear, however, that Ms Blanche is not required to maintain any other person with whom Mr Groombridge should choose to live. They are to meet their own share of living expenses.

• [4] The issues at trial will include the correct interpretation of the agreement, whether it has been varied, and whether it has been breached.

• [5] On 28 July 2009, Mr Groombridge and Ms Blanche’s divorce was finalised. On 19 November 2009, Mr Groombridge and Ms Ma married. Ms Ma and Mr Groombridge lived together at the Newmarket apartment from 2009 until 2017. In August 2017, however, Mr Groombridge was diagnosed with dementia, following his admission to hospital under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
• [6] On his release from hospital Mr Groombridge was admitted to a secure dementia unit in a Bupa rest home. He was subsequently transferred by Ms Ma to two further rest homes before Ms Ma took him home in March 2020 to live with her. Mr Groombridge is currently living full time with Ms Ma.

• [7] In September 2017, Ms Blanche stopped making regular monthly payments to Mr Groombridge. The following month Ms Ma was evicted from the Newmarket apartment by Ms Blanche. In December 2017 the apartment was sold. On 29 April 2018 Ms Ma was appointed by the Family Court as Mr Groombridge’s personal welfare guardian and property manager, pursuant to orders made under the Protection of Personal and Property Rights Act 1988.

• [8] In 2019, Woolford J appointed Ms Ma as Mr Groombridge’s litigation guardian to enable this proceeding to be brought on Mr Groombridge’s behalf.

Preliminary matters

• [9] Mr Groombridge’s daughter, Nicole Evans, has filed an affidavit in support of Ms Blanche’s application. Ms Ma objects to the admission of that affidavit on the basis that it is irrelevant. Ms Blanche, on the other hand, is of the view that the affidavit is necessary to inform the Court that an application to remove Ms Ma as a welfare guardian has commenced in the Family Court. This, Ms Blanche suggests, weighs against any suggestion that because Ms Ma is Mr Groombridge’s welfare guardian she is best placed to be his litigation guardian also.

• [10] Ms Evans’ affidavit contains a number of criticisms of Ms Ma, in her capacity as Mr Groombridge’s welfare guardian. I understand that similar issues have been raised in the Family Court, in the context of the application by Ms Evans to replace Ms Ma as Mr Groombridge’s welfare guardian. For present purposes, the substance of Ms Evans’ allegations are of limited relevance, as determination of the issues raised is for the Family Court, not this court. I accept, however, the fact that an application has been made to remove Ms Ma has some (relatively limited) relevance. Further, Ms Evans’ evidence that Ms Ma served a protection order on Ms Evans for (as the Judge found) the illegitimate purpose of keeping Ms Evans from contacting her

father is also potentially relevant. I therefore admit the affidavit to the extent that it relates to these issues.

Removal of a litigation guardian – legal principles

• [11] Rule 4.35 of the High Court Rules 2016 provides that the court may appoint a litigation guardian for an incapacitated person if the prospective litigation guardian can fairly and competently conduct proceedings and does not have interests adverse to those of the incapacitated person.

• [12] The test for removal of a litigation guardian is somewhat different – the overarching issue is whether the removal of the litigation guardian is in the best interests of the person represented.¹ In practical terms, however, if a litigation guardian does not currently meet the appointment criteria in r 4.35, their removal is likely to be in the best interests of the person represented. The r 4.35 criteria are therefore clearly relevant to an assessment of the best interests of the person represented, although other factors may also be relevant.

• [13] Ms Stevenson, counsel for Ms Blanche, submitted that litigation guardians are analogous to fiduciaries, and that the duty of independence is fundamental. She cited Re Goldman² as authority for the first proposition, and Erwood v Glasgow Harley³ as authority for the second. Ms Stevenson further submitted, with reference to Australian and Canadian case law, that litigation guardians must be “indifferent”⁴ to the outcome of the proceedings.⁵

• [14] Ms Stevenson argued that Ms Ma is not “indifferent” to the outcome of the proceeding as she will benefit financially, in her capacity as Mr Groombridge’s wife, if he is successful in his claim. For example, her overheads (such as rent) will be

¹ Re Goldman [2016] NZHC 1010, [2016] 3 NZLR 331 at [33a]; Re Clapham [2015] NZHC 210 at

[61]; A v D (1994) 7 PRNZ 502 (HC); Re Taylor’s Application [1972] 2 QB 369, [1972] 2 All ER

873 (CA) at 380.

² Re Goldman [2016] NZHC 1010, [2016] 3 NZLR 331.

³ Erwood v Glasgow Harley HC Auckland, 17/3/2003, CP179-SD02 at [30].

4. The term is from Saskatchewan Queen’s Bench Rules, r 49(1), and is cited in Gronnerud (Litigation Guardian of) v Gronnerud Estate 2002 SCC 38 at [30].
5. Dauguet v Centrelink [2015] FCA 395 at [113] from Australia, and Gronnerud (Litigation Guardian of) v Gronnerud Estate [2002] SCC 38 from Canada. Counsel also referred to Kavuru v Ontario (Public Guardian and Trustee) [2015] ONSC 6344.

reduced if she is able to live with Mr Groombridge in an apartment provided by Ms Blanche. Further, Ms Ma is likely to benefit under Mr Groombridge’s will, if he predeceases her.

• [15] Whatever the position may be in Canada or Australia, the law of New Zealand does not require that a litigation guardian be entirely indifferent to the outcome of the proceeding. Rather, r 4.35(2)(b)(ii) requires that a litigation guardian not have interests in the litigation that are adverse to those of the incapacitated person. The rule does not therefore prohibit any interest in the outcome of the case, but only interests that conflict with those of the incapacitated person. It is not prohibited for a litigation guardian to have interests that are aligned with those of the represented person. Indeed, that will often be the case where a family member, such as a parent or a spouse, is appointed the litigation guardian for an incapacitated family member.

• [16] There are numerous examples of family members being appointed as a litigation guardian. For example, in Causer v Causer, Associate Judge Bell held that a woman’s daughter could be her litigation guardian.⁶ His Honour considered the argument that an impartial stranger would do a better job. On balance, he considered that in the New Zealand context there was no incentive for a stranger to take on the role, as it generally is not remunerated and exposes litigation guardians to the risk of having costs personally awarded against them. Further, a stranger would likely struggle to develop a rapport with the incapacitated person.

• [17] In A v D, the defendants attempted to have a father removed as the litigation guardian of his children.⁷ Doogue J considered that while the father had an obvious interest in his children being successful in their litigation, his interests were not adverse to theirs. Rather, on the face of it, Doogue J considered that their interests were the same. The application was dismissed.

⁶ Causer v Causer HC Whangarei CIV-2008-488-830, 13 September 2010.

⁷ A v D (1994) 7 PRNZ 502 (HC).

• [18] Similarly, in Re Goldman the Court considered that a litigation guardian should not be removed if there was no reason to think that he was acting improperly or contrary to Ms Goldman’s best interests.⁸

• [19] Ms Stevenson noted that in Erwood v Glasgow Harley, Harrison J observed that the obligation of independence is fundamental to the role of a litigation guardian.⁹ In Erwood the litigation guardian elected to depart from an earlier decision of the incapacitated person not to engage in alternative dispute resolution. Harrison J, against the background of an incapacitated person alleged to be exploiting his mental illness to manipulate the justice system, emphasised that a litigation guardian is required to exercise their own best judgement and does not necessarily have to abide by the wishes of the incapacitated person. The obligation of independence referred to by Harrison J was simply the obligation to bring an independent mind and careful judgement to the case. This decision does not therefore support the proposition that litigation guardians are required to be indifferent to the outcome of proceedings in which they are appointed. That issue was not addressed.

• [20] Rule 4.35 is clear. A litigation guardian must not have adverse interests to the incapacitated person. There is nothing in the rule, or the case law, that precludes a litigation guardian from having any interest (such as an interest that is aligned with that of the incapacitated person) in the outcome of the proceeding. The critical requirement is that the litigation guardian’s interests do not conflict with those of the incapacitated person.

• [21] In conclusion, applying the relevant legal principles to the facts of this case, the issues that arise are:

(a) Is Ms Ma able to fairly and competently conduct proceedings on behalf of Mr Groombridge?

⁸ Re Goldman [2016] NZHC 1010, [2016] 3 NZLR 331.

9. Erwood v Glasgow Harley HC Auckland, 17/3/2003, CP179-SD02 at [30]. Guardian ad litem in this context another equivalent of a litigation guardian.

(b) Does Ms Ma have interests in the proceeding that are adverse to those of Mr Groombridge?

(c) What other factors are relevant to an assessment of what is in the best interests of Mr Groombridge?

Is Ms Ma able to fairly and competently conduct proceedings on behalf of Mr Groombridge?

• [22] Ms Stevenson submitted that Ms Ma misled the Court in her affidavit of 3 September 2019, and that such conduct demonstrates why she is not a suitable litigation guardian. Ms Ma states in that affidavit that Mr Groombridge was to receive income from a trust established by Ms Blanche, to pay for his medical needs. The agreement actually states, however, that Mr Groombridge was to be given sufficient income from the trust to maintain him “in a similar lifestyle to that he currently enjoys” by meeting his share of his housing, food, utilities and other expenses. There is no express reference to medical expenses.

• [23] Ms Cai submitted, on behalf of Ms Ma/Mr Groombridge, that it will be argued at trial that the agreement does require Ms Blanche to meet Mr Groombridge’s medical expenses as part of the requirement to maintain him in a similar lifestyle to that which he enjoyed when the agreement was signed. Ms Ma’s affidavit is not therefore misleading, Ms Cai submitted, but simply sets out her interpretation of the agreement.

• [24] Although Ms Ma’s characterisation of the agreement appears to be an interpretation of the agreement, rather than a direct quote from it, this does not disqualify Ms Ma from acting as litigation guardian. Although the relevant paragraph could perhaps have been drafted with greater clarity, the same observation could be made of a number of passages in the affidavits filed on behalf of Ms Blanche. In any case, given that Ms Ma attached the agreement to her affidavit, the source material was before the Court. There is nothing to suggest a deliberate intention to mislead.

• [25] Ms Stevenson further submitted that various actions that Ms Ma has taken are contrary to Mr Groombridge’s best interests, including removing him from the rest home and taking him home. Such actions, however, appear to be actions taken by

Ms Ma in her role as welfare guardian rather than as litigation guardian. It is beyond the scope of the current application to assess the merits of decisions Ms Ma has made as welfare guardian in any detail. In the absence of cross-examination of Ms Ma and Ms Evans, I am unable to reach any concluded view on such matters. I do note, however, that Ms Ma took Mr Groombridge home on 21 March 2020. This was two days after New Zealand closed its borders to non-citizens and residents as a result of the worldwide COVID-19 pandemic, and shortly before the country moved to a level 4 lockdown. It was widely publicised at the time that people over 70 were at particularly high risk, and rest homes were closed to visitors. Given this context, I am not persuaded by Ms Stevenson’s submission that I should infer that Ms Ma’s motive in taking Mr Groombridge home was simply to improve her position in this litigation.

• [26] A further matter Ms Stevenson advanced in support of the submission that Ms Ma could not fairly and competently conduct proceedings on behalf of Mr Groombridge was that, in separate Family Court proceedings, Ms Ma sought a protection order on Mr Groombridge’s behalf (while acting as his litigation guardian in that proceeding) which the Family Court found to be unjustified. The Family Court Judge made adverse comments about Ms Ma bringing the application and awarded costs against her personally, rather than Mr Groombridge.¹⁰ The allegations were plainly insufficient to ground a protection order. Indeed, his Honour considered that the allegations were made simply to try and stop the respondent from contacting Mr Groombridge.

• [27] Ms Ma clearly showed poor judgment in bringing and pursuing that application. Given that she was legally represented at the time, it seems likely that she was advised that the application had at least some prospect of success. Nevertheless, the fact that Ms Ma has previously made poor decisions in separate proceedings where she was acting as litigation guardian for Mr Groombridge is a relevant factor. It is not, however, determinative. This factor must be weighed together with all other relevant factors in determining whether Ms Ma is a suitable litigation guardian in this proceeding.

¹⁰ Groombridge v Evans [2020] NZFC 5104.

Does Ms Ma have interests adverse to those of Mr Groombridge?

• [28] As I have noted above, based on overseas case law, Ms Stevenson advocated a more expansive legal test for the removal of a litigation guardian. Her proposed test would have required a litigation guardian to be entirely disinterested in the proceeding. As I have explained at [15] above, however, the law in New Zealand simply requires that Ms Ma not have interests in the litigation that are adverse to those of Mr Groombridge. The fact that she has interests in the litigation that are aligned with those of Mr Groombridge is not disqualifying.

• [29] In my view Ms Ma’s interests in this proceeding are not adverse to those of Mr Groombridge. I accept that she may receive some incidental benefits if Mr Groombridge succeeds in this litigation, in her capacity as Mr Groombridge’s wife. Such interests, however, are aligned with those of Mr Groombridge. This case is therefore analogous to Causer v Causer and A v D, where the litigation guardians’ interests were aligned with those of the incapacitated persons’ they represented.¹¹

• [30] Ms Stevenson suggested the interests of Ms Ma and Mr Groombridge could diverge on the issue of how any damages award (if Mr Groombridge is successful) should be treated for relationship property purposes. That, however, is a hypothetical future issue. Any conflict on this basis could only arise if Mr Groombridge is successful in this proceeding and would likely need to be addressed separately, in the Family Court. Such hypothetical future concerns do not justify removing Ms Ma as litigation guardian in this proceeding, at this time.

Other factors that are relevant to the assessment of whether it is in Mr Groombridge’s best interests for Ms Ma to continue as his litigation guardian

• [31] Ms Cai referred to a number of other matters in support of her submission that it is in Mr Groombridge’s best interests for Ms Ma to continue as his litigation guardian. She submitted that the evidence demonstrates that Ms Ma has been a devoted wife to Mr Groombridge and has continuously cared for him during his period of illness. In particular, Ms Ma has deposed that she has visited Mr Groombridge

11. Causer v Causer HC Whangarei CIV-2008-488-830, 13 September 2010; A v D (1994) 7 PRNZ 502 (HC).

every day for three years while he has been in dementia care, usually for upwards of six hours a day, spending two hours on public transport to get there and back. Shortly before the COVID-19 level 4 lockdown Ms Ma took Mr Groombridge home from the rest home and has cared for him full time at home since then. Ms Ma’s affidavit annexes a report from Dr Yu-Min Lin, a geriatrician. Dr Lin observes that Ms Ma’s care for Mr Groombridge is difficult and time-consuming. He considers that she is at risk of carer burnout. On the evidence before the court there is nothing to suggest that Ms Ma is not a genuinely caring and devoted wife.

• [32] This proceeding has now been afoot for approximately 12 months. From my review of the court file it appears to have been conducted appropriately and competently. As is common in litigation, there have been some relatively minor interlocutory issues, relating to discovery. There is nothing unusual or untoward in that, however, and Ms Ma’s position has no doubt been informed by the legal advice she has received. Overall, there is nothing to suggest that Ms Ma will not continue to run the proceeding competently for the next eight weeks, through to trial on 2 November 2020. The fact that Mr Groombridge is legally represented provides a further safeguard. Ms Ma appears to be conducting the litigation in accordance with legal advice.

• [33] Ms Blanche seeks an order removing Ms Ma as litigation guardian and staying the proceeding until a replacement litigation guardian is appointed. There appears to be no other available family member who is willing and able to take over the role. As a result, it would likely be necessary to instruct an independent professional, such as a lawyer, to act as litigation guardian. Ms Ma’s evidence is that she and Mr Groombridge are of limited means and that instructing an independent litigation guardian would be prohibitively expensive. As a result, the likely consequence of removing Ms Ma would be that the proceeding could not continue. The consequence of this, if there is any merit in the claims made in this proceeding, is that Mr Groombridge would be denied access to justice. That would clearly not be in his best interests.

Conclusion

• [34] Of the various matters referred to above, the only factor that potentially weighs in favour of removing Ms Ma as Mr Groombridge’s litigation guardian is that she has been criticised in the Family Court for seeking a protection order against Ms Evans, when acting as litigation guardian for Mr Groombridge in related Family Court proceedings. The jurisdictional requirements for the making of such an order did not exist, on the evidence. Ms Ma undoubtedly demonstrated poor judgment in pursuing that application, although there is nothing to suggest that she was acting contrary to legal advice in pursuing the protection order.

• [35] All of the other factors I have outlined above weigh in favour of Ms Ma continuing as Mr Groombridge’s litigation guardian. She has demonstrated that she is able to fairly and competently conduct the proceeding. She does not have interests that are adverse to those of Mr Groombridge. And, significantly, the practical consequence of removing Ms Ma as litigation guardian would likely be to bring this proceeding to an end and deprive Mr Groombridge of access to justice, in the event that there is any merit in his claims. Taking all of these matters into account, Ms Blanche has failed to establish that there is any proper basis for removing Ms Ma as Mr Groombridge’s litigation guardian.

Result

• [36] The application to remove Ms Ma as litigation guardian for Mr Groombridge is dismissed.

• [37] If costs cannot be resolved between counsel, any memorandum on behalf of Mr Groombridge/Ms Ma is to be filed by 25 September 2020. Any memorandum on behalf of Ms Blanche is to be filed by 2 October 2020.

Katz J