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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
NELSON REGISTRY
CIV 2003 442
363
BETWEEN ROBERT ERWOOD
Plaint iff
AND JANET MAXTED
First Defendant
AND
JANET MAXTED AND ALEXANDER
JAMES JEREMY GLASGOW AS
TRUSTEES OF THE ESTATE OF
EDWARD ERWOOD
Second Defendants
Hearing: 25 May 2006
Counsel: No appearance for the Plaintiff
G M
Downing for the First and Second Defendants
P F A Woodhouse QC as Amicus Curiae
Judgment: 26 May 2006
JUDGMENT OF WILD J
Introduction
[1] The plaintiff commenced this proceeding in a somewhat informal
way on 19
November 2003. In it he seeks orders upholding and enforcing a trust he claims was
declared by his late mother, Lucy May
Erwood (`Lucy'), in a letter she sent Mr D J
Slow, her then solicitor, on 3 December 1979. She wrote:
It is my wish that
my sons FREDRICK and ROBERT JOHN ERWOOD
shall be able to remain, or live in the house (at 190 Waimea Road, Nelson)
anytime they desire, for as long as they wish, but are expected to pay
reasonable cost for their keep.
ERWOOD V MAXTED
AND ANOR HC NEL CIV 2003 442 363 26 May 2006
I will refer to the house at 190 Waimea Road, Nelson as `the home'.
[2] This
1979 letter needs to be set in the context of the other relevant
documents, some earlier, but most later, to which I will revert.
[3] The defendants oppose those orders. The first defendant, Ms Janet Maxted,
is the plaintiff's sister. She is now the owner
of the home. The second defendants,
Ms Maxted and Mr Jeremy Glasgow, are the trustees of the Estate of Edward
Erwood. I will refer
to Ms Maxted as `Janet'. The late Edward Erwood (`Edward')
was the plaintiff's brother. From 1983 he was the owner of the home, devising
it in
his will to Janet.
Progress of this proceeding
[4] On 5 May I refused the plaintiff's application to adjourn the 25-26
May
fixture for trial of this case.
[5] Unfortunately, because the plaintiff has subsequently several times sought
an
adjournment of that fixture, it is necessary to recount some of what has happened
through the interlocutory stages of this proceeding.
[6] First, the plaintiff requested that a settlement conference be convened. The
defendants were opposed to this, as they
considered nothing would eventuate and
that the best course was to set the case down for trial. Despite this the Court
arranged a
settlement conference for 22 April 2005. Shortly before that date, the
plaint iff sought to adjourn the conference, on the basis
that his health precluded his
attendance. The conference was rearranged for 1 July. The same thing happened.
The conference was again
arranged for 5 September. It was made clear that that
would be the final time. Again, the same thing happened, essentially vindicating
the
defendants' initial prediction. Accepting that further attempts on the Court's part to
broker a settlement were pointless, the
Court then directed that the case be set down
for trial.
[7] The plaintiff then set about requesting the Court to widen the
scope of Mr
Woodhouse's brief as amicus, effectively asking that Mr Woodhouse prepare and
argue the plaintiff's case. In a minute
he issued on 23 September, Miller J indicated
that he was not attracted to the plaintiff's request, but adjourned the matter for
decisio n after proper argument. In a careful and full decision on 2 December,
MacKenzie J rejected the plaintiff's request and spelt
out the limits of Mr
Woodhouse's role.
[8] In a minute on 9 March, Associate Judge Christiansen directed that "this
matter proceed before Wild J on 25 and 26 May 2006 at Nelson". The Associate
Judge
then gave various directions to that end. He noted the following:
I informed Mr Erwood:
(a) The trial will
proceed, and will not for any reason at all be
adjourned on 25 May.
(b) The trial will proceed
regardless of whether or not Mr Erwood
provides his synopsis.
[9] Notwithstanding MacKenzie J's 2 December
2005 decision, the plaintiff
renewed his request that the Court arrange for Mr Woodhouse to prepare and argue
the plaintiff's case
for him. I ruled that out in a minute on 4 April 2006, in which I
reiterated timetabling directions toward the 25-26 May hearing.
[10] In the face of Associate Judge Christiansen's direction that the 25-26 May
fixture "will not for any reason at all be adjourned",
on 28 April the plaintiff sought
an adjournment, and also asked that I disqualify myself from trying the case.
[11] I refused
both those applications in a fourth minute on 5 May. Although I
need not go into the disqualification issue, I record that my own
enquiries, recorded
in that minute, disclosed that the grounds on which the plaintiff requested that I
recuse myself were without
foundation, and reflect badly on the plaintiff. This is far
fro m the first time that the plaintiff has sought to disqualify a Judge,
or on which he
has challenged the decision of a Judge who has recused himself.
[12] The plaintiff has since renewed his application
for an adjournment of the 25-
26 May fixture, by memoranda filed with the Court on 17, 22, 23 and 24 May.
[13] On the afternoon
of 22 May, a Deputy Registrar in Wellington informed me
that the plaintiff was at the Court counter demanding a decision on his latest
request
for an adjournment. I instructed that Deputy Registrar to inform the plaintiff that I
had refused his request for an adjournment
in my 5 May minute, and that his case
would proceed in Nelson on 25 May, as scheduled.
[14] At 4.30 p.m. that same day, 22 May,
the plaintiff filed an appeal against my 5
May decision refusing his application for an adjournment. In a minute he issued the
fo
llo wing day, 23 May, William Young P recorded:
[5] I am not prepared to make an order staying the hearing of the
proceedings in the High Court because this would, in effect, amount to the
allowing of the appeal without the merits of
the respondents' position having
been properly considered.
[6] Ther e is no injustice to the appellant in requiring
him to go to trial
with his challenge to the refusal of the adjournment unresolved in this Court
because any complaints
he has in this respect would be available to him on
an appeal to this Court against the substantive judgment should he fail
at
trial.
[15] In all, I have counted some 140 pages of memoranda from the plaintiff on the
Court file, variously addressed
to the Registrars at Nelson and Wellington, to
Miller J, then to MacKenzie J, and latterly to me, as well as to counsel for the
defendants.
Had the plaintiff put, into preparation for hearing today, the effort he
has put into trying to avoid having his case heard, then
the result would be a well
prepared case for the plaintiff.
Adjournment?
[16] As is recorded at the start of this judgment,
the plaintiff failed to appear
yesterday. He had earlier made clear both to the Court and to Mr Woodhouse that he
would not be appearing.
Earlier yesterday morning, the Registrar at Nelson
informed me that the plaintiff had telephoned advising that he would be
available at
the Wellington High Court.
[17] Prior to yesterday's hearing, I asked the Registry to forward to Messrs
Downing
and Woodhouse copies of everything that the plaintiff had filed over the
past few days.
[18] In a memorandum he filed on 17 May,
the plaintiff stated:
(2) READY FOR TRIAL
I did indicate the case would be ready for trial in Aug, the Court can set the
date (as
naturally I have no idea what dates the Court have) so any date for
Aug or Sept 06. I undertake that I will unequivocally
appear then, in Aug or
Sep 06.
...
I give an unequivocal undertaking I will be ready in September at the latest
or ¾ of the way thru August 06.
[19] I drew these undertakings to counsel's attention. I inquired of counsel
whether, in the circumstances, they considered the wisest course would be to vacate
today's fixture and allocate a fresh fixture
in September. I indicated to counsel that
time was available before me here in Nelson in the week beginning 11 September. I
took
a short adjournment while Mr Downing took instructions from the defendants,
both of whom were in Court.
[20] Following that adjournment,
Mr Downing advised me that the defendants
opposed any adjournment, and wished to proceed today. He explained that the
defendants
both considered that adjourning the case to a date in September would
only result in the plaintiff, shortly before that fresh fixture,
seeking to vacate it also,
and further to adjourn his case, on the same grounds that he presently advanced. Mr
Woodhouse agreed that
that was the likely outcome.
[21] The grounds on which the plaintiff has sought to vacate today's fixture are
his ill health,
including poor mental health, and his inability to obtain legal
representation. There has also been more than a suggestion that,
even were he able
to obtain it, he could not afford legal representation, although that ground has not
been to the fore of late.
[22] The plaintiff has supported his claim not to be well enough to conduct his
case, with medical certificates. The most recent
one is dated 21 May 2006 and is
signed by a doctor, whose name I cannot decipher, at the Wellington Accident and
Emergency Medical
Centre. It states:
On re-examining Mr Robert Erwood today I find that he remains physically
and psychologically unfit
to attend a court hearing 25-26 May 2006. I
request an adjournment on this basis. He is unfit to travel currently.
[23]
The penultimate medical report is dated 12 May 2006, and is signed by a
doctor at the Te Aro Health Centre in Wellington. Again,
I cannot decipher the
signature. It states that the plaintiff is in a state of fatigue and disorganisation,
suffering a condition
called endolymphatic hydrops which causes dizziness and
tinitus in both ears. It notes that the plaintiff is "requesting to be allowed
to return
ho me for a period of convalescence". It expresses the opinion that the plaintiff is
currently unfit to participate in
legal proceedings or appear as a witness.
[24] An earlier medical report, dated 28 April 2006, is signed by Dr Jeffrey Law
of
the Peninsula Medical Centre in Miramar and is to much the same effect:
Currently unfit to participate and give evidence
in the above mentioned case
scheduled for 25-26 May 2006. The patient needs a period of
convalescence.
[25] Thus, there are three medical certificates over the last month, signed by three
different doctors at different medical practices.
Two of those certificates refer to the
plaint iff requesting or needing a period of convalesence, in one case "at home". I
read that
as a reference to the home, from which the plaintiff is presently excluded.
There is no indication that any of these doctors is aware
of the history and nature of
that proceeding, and I gain the impression that the plaintiff was angling for medical
support, not only
for an adjournment, but for access to the home in the interim.
[26] Mr Downing pointed out that the plaintiff's claims to ill
health at least
mental ill health - in relation to litigation, when it suits him, are not new. He referred
to the following passage
in a judgment given on 30 May 2002 by Ronald Young J in
Glasgow Harley v Erwood HC NEL CP22/98:
[29] Ther e is no evidence which establishes that in 1999 when these
proceedings began that Mr Erwood was mentally disordered. Nor is there
today such clear evidence. There is evidence of
a mentally fragile man who
has used his mental illness at times in a highly manipulative way to
advantage himself in
litigation. There is evidence that his mental fragility
has been well publicised by him to counsel, Judges and others. It
is
significa nt that at no time during the course of the last decade has anyone
applied to commit Mr Erwood under the
Mental Health (Compulsory
Assessment and Treatment) Act 1992.
[27] Mr Downing referred also to the following paragraphs
in Mr Glasgow's 18
February 2004 affidavit:
8. Robert's action in this matter is entirely predictable and I am
particularly concerned that the Court deal with Robert in a consistent
ma nner and that he be required to
answer and comply with the same
rules of procedure as any other litigant would.
9. I believe that it
will be impossible for any Court to deal with Robert
unless the application filed by him is dealt with by the same
Judge
throughout. Robert has a long history of moving around New
Zeala nd having all sorts of applications
heard by different Judges
which means that he is granted extraordinary indulgences at the cost
of everybody
but himself. Further, it is my belief that it would serve
Robert well if this matter was dealt with expeditiously
and he was
not indulged in the way he has previously been indulged.
10. Robert refers to my role as Deputy
District Inspector for Mental
Hea lth in the Nelson area. It is correct that I hold that position. It is
not correct that I have had any formal contact with Robert as a result
of his being dealt with under the compulsory
assessment provisions
of the Mental Health Act. I am unaware that Robert is diagnosed as
suffering
from any mental illness and certainly if he is I would be
most surprised to find that he is presently the subject
of a
compulsory treatment order. I understand that for him to receive
representation by way of a guardian
ad litem that he would have to
be subject to a compulsory treatment order.
[28] As to the plaintiff's claim to
impecuniosity, Mr Downing referred to a
subsequent judgment of Ronald Young J on 21 February 2003, again in Glasgow
Harley v Erwood.
In [19] of that judgment, after analysing the available financial
informat ion, Young J said:
[19] ... Nor is it adequate
in an application such as this for Mr Erwood
simply to say he is insolvent when he has received over $85,000 in capital
since 1995. If he is to establish impecuniosity then he must explain
specifica lly where the $85,000 went. Mr Erwood's
application to dispense
with security for costs therefore falls at the first hurdle. On the evidence that
I have that
is credible and reliable he is able to pay the security and should
do so.
[29] In the affidavit she swore on 31 August
2005, Ms Maxted refers to the
plaint iff's finances, although in relation to his ability to accommodate himself. She
deposed:
14. ... It is also my belief that Robert has adequate savings but refuses
to admit to this. Shortly before
Edward's death, he confided to me
that Robert had investments with a stock broking firm in Brisbane,
Australia. Robert spent periods of time in Australia between the
years of 1971 to 1973. ...
[30] The plaintiff's
ability to apply for legal aid, if he qualifies, has been
comprehensively pointed out to the plaintiff, including by MacKenzie J in his 2
December 2005 decision. An obvious
inference is open from the fact that the
plaint iff has not applied for legal aid.
[31] Mr Glasgow annexes, to his 18 February
2004 affidavit, a consent order
made by Frater J on 25 November 2003 in Erwood v Glasgow Harley & Anor. HC
AK CP 179/SD/02;CIV 2002
404 1663, pursuant to which the defendants paid the
plaint iff through his solicitors the sum of $45,000.
[32] I decided to
proceed to hear this case yesterday, and in the plaintiff's absence.
My reasons were essentially fourfold. First, I did not consider
that any evidence the
plaint iff could give would add to his case, which substantially depends on the
documents I will be referring
to in this judgment. And I did not consider that any
legal submissions he could make would improve upon the statement of the plaintiff's
case prepared by Mr Woodhouse which the plaintiff, after making some minor
amendments to it, filed on 25 August 2005. I refer to
this statement further in [68]
below. In short, I do not consider that the plaintiff's absence has prejudiced his case.
Possibly
the converse is true.
[33] Secondly, I do not consider that the plaintiff's case is prejudiced by his
failure (be it unwillingness
or inability) to adduce evidence from other witnesses. I
say other, because he filed an affidavit himself on 21 November 2003, three
days
after commencing this proceeding. And on 8 May 2006 the Court received, via Mr
Woodhouse, an affidavit sworn for the plaintiff
by the Reverend Ray Williams of
Porirua. In his memoranda, including one filed on 22 May, the plaintiff describes
the Reverend
Williams as "the main witness for the plaintiff". However, in an
earlier memorandum filed on 2 May, he had stated "there is another
6 to 8 witnesses
to have evidence taken from ...". The plaintiff did not elaborate. For reasons that
will become apparent when I
outline the facts of this case, I cannot imagine who
those witnesses might have been, still less what probative evidence they could
give.
I agree with Mr Woodhouse that the Reverend Williams' evidence does not add
much, if anything, to the plaintiff's case, and
Mr Woodhouse was unable to see what
further evidence could add to the plaintiff's case. As Ihave said, the plaintiff's case
relies
upon documents, all of which are in evidence.
[34] The third reason is the interests of justice. The plaintiff claims justice
for
himself, for example:
It would be a breach of natural justice, to proceed at this time to trial ....
(Memorandum
filed 2 May)
The right to a fair trial is being denied to me ... There is a right to be heard
... The Bill of Rights
Act prescribes the Right to A FAIR TRIAL AND
THE RIGHT TO HAVE MY CASE PRESENTED AND if because of
incapability, the
Court have a duty to investigate ... the Judge can't force a
plaintiff to conduct a trial, and then deny the plaintiff the
Rights to be heard
on incapability ...
(Memorandum dated 4 April 2006)
[35] It does not appear that the plaintiff
has ever considered the position of the
defendants, in particular that of his sister Janet. She now owns the home and wants
to sell
it. Justice must serve all parties equally. It is approaching three years since
the plaintiff commenced this case. The defendants
are entitled to have it heard.
Against the defendants' protest that it would be a waste of time, the Court on three
successive occasions
arranged a judicial settlement conference. Each, because the
plaint iff claimed he was unable to attend, had to be abandoned. The
25-26 May
fixture was made over two months ago. The plaintiff was there when it was made.
He knew it was a firm fixture, not to be
adjourned. Mr Woodhouse submitted that
the plaintiff had been afforded every reasonable concession. I agree. I also agree
with the
sentiment expressed by Mr Glasgow at the end of the following paragraph
in his 18 February 2004 affidavit:
9. I believe that it will be impossible for any Court to deal
with Robert
unless the application filed by him is dealt with by the same Judge
throughout. Robert
has a long history of moving around New
Zeala nd having all sorts of applications heard by different Judges
which means that he is granted extraordinary indulgences at the cost
of everybody but himself. Further, it
is my belief that it would serve
Robert well if this matter was dealt with expeditiously and he was
not indulged in the way he has previously been indulged.
[36] I do not understand what the plaintiff thinks he has to gain by
further
delaying a decision in this case. It can only be in his interests that he has a decision,
and can get on with his life on
the basis of that decision, allowing the defendants to
do the same.
[37] Fourth, I agree with counsel that the plaintiff's undertakings
that he will be
ready to proceed in late August or September, if his case is adjourned, are not to be
accepted. His track record
belies them. Further, I do not follow his confidence that
he will have recovered, by late August and September, from his current
poor (and
apparent ly declining) physical and mental health. Significantly, he does not explain,
and no support for this prognosis
is to be found in the medical certificates, unless it
is that a period of convalescence at "home" will facilitate a recovery.
[38]
It is for those reasons that I proceeded to hear the plaintiff's case yesterday,
and give this judgment in it. I have set out in
detail my reasons for refusing to
adjourn the case, since counsel were agreed that a challenge to my refusal to vacate
the fixture
and adjourn the case, and to this judgment is inevitable.
Factual background
[39] Lucy had five children. The eldest was Edward,
who died on 11 September
2003. I gather that Edward never married, and lived all his life with Lucy. For the
last many years of their
joint lives, they lived together in the home. Edward spent
his working life with the Post Office, from which he retired on a Government
pensio n.
[40] Janet is the second child. She is the principal, but not the only, beneficiary
under Edward's will executed on
2 June 2003. The home was part of the residue of
Edward's estate which he left to Janet.
[41] The third child was Fredrick who
committed suicide in 1982. The plaintiff is
the fourth child.
[42] The fifth and youngest child is Margaret. She
suffers from Downs
Syndrome. She was under "respite" care from January 1970 and since 22 December
1986, has been a permanent resident
in Braemar, a Nelson Marlborough District
Health Care unit for intellectually disabled people.
[43] Lucy lived with her children
in the home. It was a state house. Lucy began
purchasing the home from the State Advances Corporation under a written
agreement for
long-term purchase dated 25 July 1968. This agreement stipulated a
purchase price of $6,100, provided for a deposit of $300, with
the balance in
mo nthly instalments and accruing interest at 5% per annum.
[44] Lucy died on 2 April 1993 aged 82.
[45]
The plaintiff regarded the home as his home, but lived away from it for
lengthy and frequent periods. Janet describes his lifestyle
as itinerant.
[46] On 27 July 1971 Lucy made her last will. This was not proved upon her
death over 20 years later, presumably
because the size of her estate did not warrant
that. In this will she stated:
I give and bequeath my House, my Land and
all my property whatsoever to
my said eldest son, Edward, absolutely, I declare that I have made no
provision for
my other children because they are able to fend for themselves,
and, the said EDWARD ERWOOD has paid the deposit on my said
house
and is paying the rates, insurance and maintenance for the said house. Also
the said Edward Erwood is the only one of my children who can afford to
pay
the State Advances monthly payments for the said house.
[47] On 3 December 1979 Lucy wrote to her then solicitor, Mr D J Slow
of Ralfe
& Co. in Nelson. As this letter is at the heart of the plaintiff's case, I set it out in
full. I should add that Lucy signed
the letter in the presence of two witnesses, who
added their occupations and addresses. One was the Registrar of the Supreme Court
at Nelson, the other a Court officer. Lucy wrote:
190 Waimea Road,
NELSON
Mr D J Slow,
Ralfe and Co,
Barristers and Solicitors,
Newmans Buildings,
Hardy Street,
Nelson
Dear Mr Slow,
I request
you retain this letter in safe deposit, to be used in evidence if
necessary after my death. My will has been prepared by another
firm of
Solicitors some years ago, and prior to my knowing yourself and firm,
through circumstances and events of recent
times.
Nevertheless should any problems arise after my will has been executed, it
ma y be of some help for the beneficiary
and court, to call on an outside firm
of Solicitors, for the clarification within this letter.
My Son EDWARD ERWOOD
(Senior Clerk, Post Office) of 190 Waimea
Road, Nelson of whose idea it was to buy the House and Property, placed the
requir ed deposit himself to permit the purchasing, the Sleepout also having
been paid for by him. Edward also pays the
rates, insurances and interior
exterior maintenance, including various accounts, a sometime very large
Electricity
one is financed by him. A great deal of work on the section
surrounding the House is carried out by Edward.
It is
my wish that my Sons FREDRICK and ROBERT JOHN ERWOOD
shall be able to remain, or live in the house anytime they desire, for
as long
as they wish, but are expected to pay reasonable cost for their keep.
Should Robert John continue in his practice
of untruthful statements and
troublema king, he may be evicted from the house, but permitted to return
after a period
of time if he agrees to discontinue bringing about such
disruption and unpleasanties.
Yours faithfully
Mrs
Lucy May Erwood
[48] In 1983 Lucy entered into an agreement with Edward pursuant to which she
sold him her interest under her
long-term purchase agreement with the State
Advances Corporation. The purchase price was $21,560. There was no deposit.
The agreement
provided that the purchase price was to be satisfied by Edward
forgiving $7,000 owed to him by Lucy, Edward gifting $14,550 to Lucy
on the date
of possession, and any balance owing being a debt owed by Lucy to Edward payable
on demand without interest. Clause 2
of the agreement provided:
2. The Purchaser (Edward) shall grant the Vendor (Lucy) a licence to
occupy
the premises together with the Purchaser for the remainder
of her life.
[49] On 4 August 1983 Lucy transferred
to Edward her interest under the long
term agreement with the State Advances Corporation. Again, the consideration was
stated to
be $21,560. Curiously, but clearly erroneously, the transfer recorded that it
was pursuant to an oral agreement. The transfer was
registered on 30 November
1983.
[50] Also on 4 August 1983, Edward and Lucy entered into a tenancy deed which,
relevant ly,
recorded:
WHEREAS the said LUCY MAY ERWOOD did sell the premises to the
landlord;
AND WHEREAS it is the
intention of the parties that the said LUCY MAY
ERWOOD shall have a home in the premises for the term of her life together
with the landlord and other members from time to time of the said LUCY
MAY ERWOOD's family:
NOW THEREFORE this Deed witnesses as follows:
WHEREBY:
(1) THE landlord agrees to let and the tenant agrees to take the premises
described in
the schedule hereto for a term commencing on 1
August, 1983 and expiring on the death of the said LUCY MAY
ERWOOD free of rent.
[51] On 17 January 1987 the Crown, for the former State Housing Corporation,
transferred to
Edward the fee simple in the home. This was pursuant to the long
term purchase agreement of 25 July 1968, and it stated that the
consideration was
$6,100, presumably the unpaid balance of the purchase price due under that
agreement. This transfer was registered
on 24 February 1987.
[52] On 19 June 1989 Lucy and Edward entered into a further agreement. As this
agreement was initially
the basis for the plaintiff's claim, I also set it out in full:
THIS AGREEMENT HAS BEEN REACHED BY MYSELF EDWARD
ERWOOD AND MY MOTHER LUCY MAY ERWOOD AT OUR
RESIDENCE 190 WAIMEA ROAD NELSON, ALTHOUGH THE
ABOVE PROPERTY REMAINS
IN THE NAME OF EDWARD
ERWOOD, MRS L M ERWOOD RETAINS FULL CONTROL IN ALL
MATTERS TO DO WITH THE PROPERTY AND RESIDENTS
THEREIN, UNTIL HER DECEASE, WHILST GIVING REASONABLE
AND FAIR RIGHTS TO ALL MEMBERS OF THE FAMILY RESIDING
AT THIS PROPERTY. THE SALE OF THE ABOVE PROPERTY MUST
BE AN AGREEMENT REACHED BETWEEN EDWARD ERWOOD
AND HIS MOTHER
MRS L M ERWOOD. THE PROPERTY MAY NOT
BE SOLD UNLESS BOTH ABOVE MENTIONED PARTIES CONCUR.
AFTER THE DECEASE OF MRS
L M ERWOOD, EDWARD ERWOOD
WILL RESUME CONTROL OF THE ABOVE PROPERTY. THE
PRESENT SITUATION EXISTING WITH HIS SISTER
MARGARET
ERWOOD WILL CONTINUE, IE:- OUTINGS IN THE CAR AND STAYS
AT THE PROPERTY AT LEAST THREE DAYS A WEEK.
UNTIL ROBERT ERWOOD PURCHASES HIS OWN HOUSE OR FLAT
HE WILL RETAIN HIS BEDROOM AT THE PROPERTY AND USE OF
HOUSE
FACILITIES, AND TO COME AND GO AS HE WISHES BUT IS
REQUIRED TO PAY HIS FAIR SHARE OF OUTGOINGS.
IF AT ANY TIME THE
HOUSE IS SOLD EITHER BY EDWARD
ERWOOD OR ON HIS DEATH, THEN ROBERT ERWOOD IS TO BE
GIVEN THE FIRST OPTION TO PURCHASE
THE SAME, SUCH
OPTION TO BE EXERCISED BY HIM IN WRITING WITHIN ONE
MONTH FROM BEING NOTIFIED AT HIS LAST KNOWN ADDRESS
TO EDWARD ERWOOD BY EDWARD ERWOOD OR HIS EXECUTOR
AS THE CASE MAY BE OF THE PRICE REQUIRED AND
SETTLEMENT
SHALL BE ONE MONTH LATER.
IF EDWARD ERWOOD SELLS THE HOUSE HE WILL ARRANGE FOR
BUT NOT PAY FOR ACCOMMODATION FOR
HIS BROTHER. GOOD
ACCOMMODATION TO BE OF A SIMILAR STANDARD TO THE
FIRST HOUSE AND TO BE DECIDED BY EDWARD ERWOOD
IN HIS
SOLE DISCRETION. THE SAME SITUATION WILL REMAIN IN
FORCE FOR HIS SISTER MARGARET ERWOOD AS WAS THE CASE
TO THE FIRST HOUSE.
OWING TO ROBERTS WELLKNOWN TROUBLEMAKING NATURE,
IF A SITUATION BECOMES EXCESSIVELY OUT
OF CONTROL,
EDWARD ERWOOD TO BE THE SOLE DECIDER OF WHAT
CONSTITUTES "EXCESSIVELY OUT OF CONTROL" AND HIS
DECISION WILL BE BINDING ON ALL PARTIES INCLUDING
ROBERT ERWOOD. HE MAY BE TOLD TO LEAVE THE PROPERTY
FOR A SHORT
PERIOD (A FEW WEEKS) BEFORE BEING
PERMITTED TO RETURN AND TAKE UP RESIDENCY AGAIN. IT IS
THE WISH OF MYSELF EDWARD
ERWOOD AND MRS L M
ERWOOD THAT THIS DOCUMENT IS HELD AT THE OFFICE OF A
SOLICITOR.
[53] The witness to both signatures
is Mr Tidswell, a Nelson solicitor of very long
standing. He has noted that he was witnessing the parties' signatures:
Having
first informed Edward Erwood that I do not consider this document
to be in his best interests.
[54] On 16 June 1991 a Mr
T G Todd, a Nelson chartered accountant, wrote to the
plaint iff at 190 Waimea Road, Nelson. In this letter, Mr Todd recorded that he had
been involved with the family for 12-15 years on an "on-off
basis" and had talked
about many matters related to relationships within the family. He wrote:
Unfortunately the situation
has been committed to writing and I feel that the
words do not really convey the true position that is expected by the various
parties. The intention of your mother has always been to provide a home for
you and other members of the family, and
I am sure that that is still the case.
I believe that this is what she wants, and I do hope that this can be secured,
even though some written documents have been prepared which indicate a
limitation for you, but without you being a party
to those documents. It
would have been better if you had had the opportunity to agree to any
limitations when the documents
were prepared. I understand you were not
aware of the document when it was prepared, so wonder how you could have
had
the opportunity to present your case before the matter was finalised.
[55] Finally, as already mentioned, there was Edward's will
of 2 June 2003. In
that will Edward made a bequest of $1,000 to the plaintiff. It is indicative of the
plaint iff's attitude and
credibility that he struck that fact out from paragraph 19 of the
statement prepared by Mr Woodhouse which the plaintiff filed on
25 August 2005.
The striking out is with a black felt tipped pen. Probate of Edward's will was
granted to the second defendants on
6 October 2003.
[56] On 6 November 2003 Janet, through her solicitor, gave the plaintiff notice to
vacate the home no later than
7 February 2004. It was that notice which precipitated
filing of this proceeding by the plaintiff on 19 November 2003.
[57] In
his informal statement of claim filed on 19 November 2003 the plaintiff
alleged:
That I am a beneficiary under a trust
deed dated 19 June 1989 and under the
Contract (Privity) Act 1982, when my mothers desire and intention was
always
that I as a dependent would always have her former house.
...
[58] In the statement of his case prepared by Mr Woodhouse,
but filed by the
plaint iff on 25 August 2005, the plaintiff switches reliance to Lucy's 3 December
1979 letter to Mr Slow. He alleges
that in this letter Lucy declares, in the plaintiff's
favour, a trust that, following Lucy's death, the home is to be available for
her sons
Fredrick and Robert "at any time they desire, for as long as they wish".
[59] The plaintiff then alleges that the transfer
from Lucy to Edward on 4 August
1983 was subject to the trust Lucy declared in her 3 December 1979 letter. Thus,
alleges the plaintiff,
Edward took title to the home subject to that trust because he
had express knowledge of the trust. The plaintiff claims that the
likelihood is that
Edward typed the 1979 letter for Lucy, as its terms are reflected, though with some
ambiguit y, in later documents
prepared by Edward.
[60] Although Lucy's primary declaration is recorded as being her "wish", the
plaint iff alleges that, in
the context, and used by a lay person, it is nevertheless an
expressio n of what Lucy required in relation to the home which at that
date was
ent irely at her disposal both legally and beneficially.
[61] The plaintiff alleges that Lucy's 1971 will, in excluding
the plaintiff and
recording that he was able "to fend for (him)self", smacked of undue influence by
Edward.
[62] The plaintiff
makes the same allegation in relation to the 1983 agreement,
transfer, and tenancy deed, submitting that they were not in Lucy's
interests. The
plaint iff points to the recital in the tenancy deed recording the parties' intention that
other members from time
to time of Lucy's family "shall have a home in the
premises for the term of her life", which is not reflected in the operative part
of the
deed.
[63] I pause here to note that Mr Glasgow deposes, in paragraph 13 of his 7
September 2005 affidavit, that he acted for Lucy in respect of the
1983 agreement
for sale and purchase and transfer. He states that Mr Slow deliberately and carefully
sent Lucy to Mr Glasgow, and
Mr Glasgow produced a copy of a medical certificate
addressed to Mr Slow obtained from Lucy's doctor at the time (it is dated 28
February 1983) stating:
Mrs L M Erwood is in good mental health and is in a fit state of mind to be
able to decide
and give instructions as to the disposal of her interests.
[64] Mr Glasgow is unsure why Mr Slow witnessed the signatures of both
Lucy
and Edward on the 4 August 1983 tenancy deed. But he is certain he approved that
deed on her behalf.
[65] The plaintiff
submitted that the 1989 agreement further evidences Edward
unduly influencing Lucy, and is an attempt by Edward to defeat the plaintiff's
rights
under Lucy's 1979 declaration of trust. The plaintiff's points were:
a) The agreement is patently drafted by
Edward (and appears also to
have been typed by him): it commences "this agreement has been
reached by
myself Edward Erwood and my mother Lucy ...".
b) There is no evidence of Lucy having been independently advised. Mr
Tidswell witnessed both parties' signatures.
c) The purpose of the agreement cannot have been to protect
Lucy, since
it adds nothing to the rights she already had under the 1983 tenancy
deed.
d)
Rather, the purpose of the deed was to give Edward complete control
over the plaintiff's occupation of the home,
as is particularly
evidenced by the final paragraph of the agreement.
[66] Finally, the plaintiff pointed to Mr
Todd's June 1991 letter as independent
evidence of Lucy's intention always to provide a home for the plaintiff in the home.
The plaintiff
points out that Mr Todd records that he had known the Erwood family
off and on for between 12 and 15 years, and points particularly
to that part of the
letter in which Mr Todd states:
The intention of your mother has always been to provide a home for you
and
other members of the family, and I am sure that that is still the case. I
believe that this is what she wants ...
[67] Although not referred to in the plaintiff's statement of claim, the statement
(prepared by Mr Woodhouse) subsequently filed
by the plaintiff on 25 August 2005,
alleges an alternative, statutory basis on which the Court could make the orders the
plaint iff
seeks. This is s10(1)(c) of the Protection of Personal & Property Rights Act
1988 which provides:
On an application for the
exercise of a Court's jurisdiction under this Part of
this Act in respect of any person, the Court may, subject to subsection
(2) of
this section, make any one or more of the following orders:
...
(c) an order that the arrangements
made by any parent of the person for
the personal care of the person after the parent's death be observed,
or be varied in any particular specified in the order ...
[68] I record that Mr Woodhouse advised me that he prepared
the statement which
the plaintiff filed in an effort to put the plaintiff's case in the most favourable and
compelling way. Clearly,
the plaintiff accepted that Mr Woodhouse had succeeded
in doing that because he adopted the statement and filed it, after making
a few
amendments and deletions to it. That statement is a very helpful discharge of Mr
Woodhouse's role as amicus. Mr Woodhouse felt
constrained to tell me that the
statement did not represent his views of the merits of the plaintiff's case. He put
those to me in
the course of argument yesterday, in discharge of another aspect of his
amicus role: assisting the Court to reach the correct decision.
[69] I return now to Lucy's 3 December 1979 letter upon which the plaintiff now
primarily relies. I am unable to interpret this as creating, at the time it was written, a
trust binding
upon Lucy to provide a home for the plaintiff in the home, for as long
as the plaintiff wished.
[70] The critical part of the
letter starts:
It is my wish ...
[71] "Wish" is quintessentially a precatory word. Under Trust law, which requires
certaint y of intention to create a trust, the Court is to give such words their ordinary,
everyday meaning: Laws NZ, Trusts Reissue
1, para 51. "Wish" means wish. It
does not mean "direct", or "require". As Mr Downing points out, Lucy's wish is not
even expressed
in absolute terms. It is conditional upon the plaintiff paying
"reasonable cost for (his) keep". I am unable to spell a
binding trust out of the
crit ical words in Lucy's letter.
[72] Reinforcing this is the fact that these words were used in a
letter sent by Lucy
to her solicitor, with instructions (recorded at the start of the letter) that he retain it in
safe deposit to
be used in evidence if necessary after Lucy's death, should any
problems arise with her will, and then for the help of the beneficiary
and the Court.
The words were not used in a will or deed or other type of solemn/formal document.
[73] There are other, quite
separate problems with the plaintiff's case. The
evidence satisfies me that Edward was unaware of Lucy's 1979 letter.
It appears to
have surfaced for the first time as an exhibit to the affidavit Mr Glasgow swore in
this proceeding on 18 February
2004 (as exhibit `C'). It is evident that the plaintiff
was also unaware of it until Mr Glasgow put it in evidence. The plaintiff
made no
ment ion of it in his initial statement of claim in this proceeding. Nor did he rely
upon it in either of the two separate
proceedings he brought against Edward in 1991
and 1992. The judgments delivered by Heron J on 1 July and 6 September in Robert
Erwood
v Edward Erwood HC Wellington CP37/91 refer only to the 1983 and 19
June 1989 documents. A minute issued by Ellis J on 16 September
1993 in Robert
Erwood v Edward Erwood HC Wellington CP54/92 records:
It seems to me that the essence of Mr Pike's suggestion
is that Mr Robert
Erwood's claim to have some rights in respect of the family home either
pursuant to the 1989 agreement
or otherwise, is at the heart of this matter ...
[74] That latter minute was put in evidence by the plaintiff, as an annexure
to the
affidavit he affirmed in this proceeding on 19 November 2003.
[75] The plaintiff's submission that Edward took title to
the home subject to
Lucy's alleged 1979 declaration of trust therefore cannot be correct. On the
contrary, Edward, having
no knowledge of the 1979 letter or its content, took title
free of any obligation binding upon him as Lucy's successor in title which
it
contained.
[76] A further obstacle to the plaintiff's case is that any trust declared was
condit ional upon the plaintiff
paying "reasonable costs for (his) keep".
Overwhelmingly, the evidence is that the plaintiff never did that. That evidence
comes
from three sources:
a) From Edward: On 2 June 2003 Edward wrote to Janet in the
fo llo wing terms
(the letter is handwritten):
Janet Maxted
Brother ROBERT JOHN ERWOOD has contributed
to no
financial interest in my property, 190 WAIMEA ROAD
NELSON, or to anything else
regarding it, and owns only
that which he has in the room he sleeps, plus a few clothes in
passage closet, and a suitcase or two and a few papers stored
in wardrobes Marg's bedroom. He has no
right to claim
anything else from you, or through the Courts, goods or
products or any
financial share from my property.
Edward
E. Erwood
2nd June 2003
b) From Janet: In paragraph 14 of her
31 August 2005 affidavit she
deposed of the plaintiff:
He refused to pay board, or take any
responsibility ...
Robert desires me to place tenants at 190 Waimea Road and
for him
still come and go as he pleases, and to retain a room
(his bedroom) for himself. This is quite unacceptable
to me
and I know with certainty that Robert would expect to pay
no costs whatsoever in
connection with this arrangement ...
c) From Mr Glasgow: In paragraph 4 of his 18 February 2004 affidavit
he deposed:
3. Parts of the letter and the agreement refer to Robert being evicted in
the event
of his making untruthful statements or being disruptive. In
fact his behaviour has from the point of view of my deceased
client
been persistently disruptive and at no time, to the best of my
knowledge, has Robert met any
part of the fair share of the
outgoings on the house. I recall Edward complaining of these
problems
Robert caused him.
And in Mr Glasgow's further, 7 September 2005 affidavit:
1. ... the information I gained
both from Lucy and Edward was that ...
Robert never contributed anything and was more of a problem than
he was a help.
...
2. ... In particular, Robert who, as Edward told me during his life, has
never paid for anything in relation to the house.
And also his paragraph 4, set out in [78] below.
[77]
Finally, Lucy wrote her letter in 1979. Given the basis on which she sent it to
Mr Slow for safe deposit against the event of problems
relating to her will after her
death (i.e. essentially, in escrow), it was open to Lucy to depart from any wish she
expressed in
it, which subsequently she did. Notably, she sold her interest in the
ho me to Edward, transferred that interest to him, and entered
into a deed of lease
with Edward guaranteeing her a lifetime tenancy free of rent. Any rights "other
members from time to time of
(Lucy's) family" had under that deed were "for the
term of her life", that is the term of Lucy's life.
[78] The point that Lucy's
1979 letter was overtaken by developments within the
Erwood family, in particular the affects of the plaintiff's continued disruptive
behaviour, were made by Mr Glasgow in the following paragraph in his further
affidavit sworn 7 September 2005:
The letter of Lucy's which is dated the 3rd December 1979 predates
4.
the sale in 1983 of her interest in the house
to Edward and the writer can
certainly say from his knowledge that at the date of sale the situation had
moved on
somewhat; and that there had been further years of torment for the
family as a result of Robert's behaviour. To their credit
both Lucy Erwood
and Edward provided accommodation for Robert notwithstanding that he
continued to refuse to meet
their very minimal requirements. (i.e. that he
behaved himself and that he paid a fair share of outgoings). At this point
again it must be stated that Lucy Erwood told me on more than one occasion
that she was extremely troubled by Robert's
persistent difficult behaviour
and was torn between so to speak `washing her hands' of putting up with
him and what
she felt was her natural obligation as a mother to provide for
him.
[79] Mr Glasgow was adamant about the problems the
plaintiff's conduct caused
within the Erwood home. Referring to the last paragraph of the 19 June 1989
agreement (set out in [51]
above), Mr Glasgow deposed:
9. (This) really glosses over the grossness of Robert's behaviour and
Mr Woodhouse is perhaps unaware of the persistent and continual strive that
Robert caused in the family home, both because of his behaviour within the
home and because of his endless litigious
behaviour out of the home. By
litigious I mean not just formal litigation but endless complaining to doctors,
dentists,
City Council, priests as well as real litigation including actions
against his brother and others. I am aware of this personally
because of
numer ous consultations with Edward, some with Lucy, and numerous phone
calls from doctors, ministers of
religion and City Council officers among
others.
[80] I turn to the 19 June 1989 agreement upon which the plaintiff initially
relied.
The defendants say this is an arrangement between Lucy and Edward which confers
no rights on the plaintiff, who was not a
party to it. Although I am inclined to agree,
let me assume that the plaintiff can enforce whatever rights he has under that
agreement.
It seems to me that the only right was the option to purchase the home if
Edward ever sold it.
[81] Whether the defendants were
obliged to give the plaintiff that option after
Edward's death is doubtful. However, the evidence establishes that they did so in
a
letter dated 22 December 2003, and that the plaintiff did not exercise that option,
which expired at the end of February 2004.
[82] As to a right to occupy, the only tenable interpretation of the 1989 agreement
is that this is a right during Lucy's lifetime
or, at best, until Edward sells the home,
in which event Edward had an obligation to "arrange but not pay for
accommodation" of a
similar standard for the plaintiff. There is no restriction upon
Edward's ability to sell the home. Again, whatever right of occupation
the plaintiff
had, was conditional upon the plaintiff paying "his fair share of outgoings". I have
already found, overwhelmingly,
the evidence that the plaintiff did not do that.
[83] I cannot spell out of the 1989 agreement the right to occupy the home
for his
lifet ime which the plaintiff claims.
[84] I also cannot regard the 1989 agreement as evidencing Edward unduly
influencing
Lucy. I consider Mr Downing is correct in submitting that the 1989
agreement was actually against Edward's interests. That was obviously
the view of
Mr Tidswell, who witnessed it, as he felt constrained to record that he had so advised
Edward.
[85] Further, Janet
deposes that Lucy made decisions in relation to the home right
up until her death, and that she had the upper hand whenever there
was any
disagreement. Indeed, the 1989 agreement provided for exactly that. Janet deposes
that Lucy "kept her mental faculties right
up until her death. She was more than able
to make fully informed decisions ...".
[86] Janet's evidence in this respect is
supported by that of Mr Glasgow. He
stated that, from his interviews with Lucy, it was clear to him that she did exactly
what she
wanted to and did it in exactly the way she wanted to. He deposed (in
paragraph 11 of his further, 7 September 2005, affidavit):
She (Lucy) was well aware that what she was doing was going to impinge on
Robert to some extent. She was further
well aware that there was no
alternative to that because Robert was incapable of taking responsibility for
himself
...
Result
[87] The plaintiff has not made out any part of his claim. Accordingly, I decline
to make any of the orders he
seeks. There will be judgment for the first and second
defendants against the plaintiff. The first defendant is free to deal with
the home free
of any obligation to the plaintiff and the second defendants are free to continue their
administration of Edward's
estate free of any obligation to the plaintiff beyond, of
course, payment of the bequest Edward made to the plaintiff in his will
(subject to
the costs orders which follow).
Costs
[88] The plaintiff is to pay the first and second defendants' costs (one award to
both sets of defendants) on
a 2B basis. The following third schedule items are to be
calculated on the following bases:
· 4.11. Allowance for 7
judicial conferences.
· 4.13. Allowance for 5 applications (item 4.14 not applicable, as none
went to
hearing).
· 8. To be calculated on the basis of a two day hearing.
Solicitors:
McFadden McMeeken Phillips, Nelson
for the Defendants
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