WALSH V PUBLIC TRUST HC TAU CIV 2008-470-376 [2009] NZHC 207 (24 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
TAURANGA REGISTRY
                                                                  CIV 2008-470-376

               UNDER                       the Family Protection Act 1955

               IN THE MATTER OF            ESTATE OF
FRANK MAINE BATESON

               BETWEEN                     AUDREY WALSH
                                           Plaintiff

               AND                         PUBLIC TRUST
                                           Defendant


Hearing:       24
February 2009
               (Heard at Rotorua)

Appearances: Mr King for plaintiff
             Mr Richardson for Applicant Ms McNabb
             Mr G Traves for Public Trust

Judgment:      24 February 2009


           ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE




Solicitors:
Sharp Tudhope, Private Bag 12020, TAURANGA
Public Trust, P O Box 4549, Christchurch



WALSH V PUBLIC TRUST HC TAU
CIV 2008-470-376 24 February 2009

[1]    The proceedings in this matter were served on 3 September 2008 on the
applicant, Leith
Valerie McNabb. Ms McNabb received a legacy under the will.
Family Protection proceedings have been launched by a daughter of the
deceased
and as part of those proceedings the plaintiff attacks provision four ­ Ms McNabb.
Notwithstanding that she was served with
the proceedings some four to five months
ago Ms McNabb took no steps to file a statement of defence until the last day or two.
The
explanation that she gives for the delay is that a solicitor who apparently did not
have expertise in this area of litigation, gave
her advice to the effect that there was
no need to take steps because the public trustee as executor and defendant in the
proceedings
would be ensuring that the deceased testamentary wishes were given
effect to. That solicitor apparently subsequently decided that
it would be best if
someone with experience in this area was briefed for Ms McNabb and that is how
Mr Richardson comes to be in the
litigation.         Mr Richardson prepared a draft
statement of defence and an affidavit which has been sworn and has been filed
in
Court on what Mr Richardson describes as a provisional basis ­ because of course
Ms McNabb has no right at this point to take
any steps in the proceedings and can
only do so if she is given leave to file her statement of defence.


[2]    Mr King for the
plaintiff, opposes the granting of leave. He referred me to
the notice of opposition that the plaintiff has filed. He submits there
has been
inordinate delay by the applicant in taking steps. He says there has been no proper
explanation for the delay and there
is no reasonable excuse. He says that the error by
the solicitor does not suffice. He said that if the door was closed on Ms McNabb
she
may well have a right of recompense from the solicitor. He said the overall justice
of the case favours the respondent, pointing
out that it is possible that this matter
could be heard on a formal proof basis in quite a short time whereas if the statement
of
defence is filed there could be lengthy delays. He also claimed that there may be
a need for discovery in interrogatories in the
proceeding. In fairness to him he has
not had a very long period within which to review the affidavit file by Ms McNabb
so he was
not able to develop this last point. He referred me to authority but I accept
Mr Richardson's submissions that the authority in question
iS directed to the rather
different matter of an appeal and leave been granted to appeal out of time. As Mr
Richardson said, in this
case the applicant has never had her day in Court, whereas

the parties in the case of Aden Electrical Limited v Teamtalk Limited
(HC AK CIV-
2007-404-003975, 10 March 2008) had had what the Court described as a fair
amount of Court hearing time `and then some'.


[3]     My concern is that while the applicant has been derelict there is a strong case
to be made that she should have the chance
to be heard by the Court on the merits of
this case. The door should only be shut on her if there are very compelling reasons
for such an outcome. While Mr King is right that the failure
by the solicitor is the
key reason why Ms McNabb did not take steps earlier, I consider that a case of this
kind is different from
one where the applicant him or herself is simply negligent and
takes no proper steps, even though warned of the need to do so, in
the notice of
proceeding. There is no true prejudice to the plaintiff if the present application is
granted. It is true that there
is prejudice in the sense that the plaintiff might be able
to deal with her claim on an unopposed basis but not a great deal of weight
can be
attached to that in comparison with the more compelling claim by the applicant that
the proceedings should be given a hearing
and a reasoned judgment obtained from
the Court. On balance, but not by a great margin I conclude that this is a proper case
to grant
leave. The applicant has to understand that if there are any further delays of
course, she would be particular vulnerable to an application
to strike out or of some
other kind.        I consider that the applicant, having sought an indulgence in
circumstances where she
has been at fault, should pay the costs of and incidental to
the application for leave and she should pay those costs in any event.
The costs are
to be on a 2B basis. The parties should be able to agree on the matter of costs.


[4]     The applicant is to file
and serve her statement of defence and affidavit
within seven days. Within the same period, the parties should confer and if possible
produce a consent memorandum on interlocutory steps to be taken.


[5]     The directions order should include provision for when
any further affidavits
are to be filed.


[6]     The next conference in this matter will take place at 11.40 a.m. on 28 April
2009.

__________________________
J P Doogue
Associate Judge