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High Court of New Zealand Decisions |
Last Updated: 28 June 2023
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
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CIV-2021-419-000126
[2023] NZHC 1190 |
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IN THE MATTER
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of an application to grant letters of
administration in solemn form in respect of the estate of EDWARD WILLIAM
BENJAMIN HITA
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BETWEEN
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EMORA HITA
Plaintiff
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AND
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SAMANTHA JUNE URAIATA HITA as
executrix in the estate of EDWARD WILLIAM BENJAMIN HITA
Defendant
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CIV-2023-419-000066
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IN THE MATTER
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of the Family Protection Act 1955
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BETWEEN
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EMORA HITA
Plaintiff
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AND
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SAMANTHA JUNE URAIATA HITA as
executrix in the estate of EDWARD WILLIAM BENJAMIN HITA
Defendant
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Hearing:
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17 May 2023 (by telephone)
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Appearances:
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Mr Depledge for Plaintiff Defendant in person
C Fuller and J Cheng for Ministry of Social Development
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Judgment:
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17 May 2023
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JUDGMENT OF VENNING J
This judgment was delivered by me on 17 May 2023 at 4.00 pm, pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date...............
HITA v HITA [2023] NZHC 1190 [17 May 2023]
[1] These two sets of proceedings arise out of the will and estate of the late Edward William Benjamin Hita (the deceased). The deceased died on or about 25 December 2020 leaving five children, including the plaintiff (his eldest daughter) and the defendant, Samantha, who was appointed the sole executrix and sole beneficiary of his last will dated 18 May 2019.
[2] The deceased’s estate comprises a property at 40 Awakino Road, Te Kuiti, with a mortgage of approximately $85,000 as at the date of his death, a KiwiSaver account of approximately $28,000, and two motor vehicles.
[3] In CIV-2021-419-126 the plaintiff seeks to have probate of the last will recalled on the grounds that the will was made when the deceased was subject to the undue influence of the defendant, and on the basis of defects in the execution of the will itself. If the will is set aside the plaintiff seeks a grant of letters of administration in solemn form.
[4] In CIV-2023-419-66 the plaintiff seeks further provisions from the estate in the event the existing will is upheld. The Family Protection proceedings were commenced in the Family Court but have been transferred to this Court for hearing with the CIV- 2021-419-126 proceedings. In a minute issued on 24 April 2023 Gault J declined an application for consolidation but made an order under r 10.12 that the two proceedings be heard together.
[5] In the minute referred to, Gault J also made directions allocating a two day hearing (reserve fixture) commencing on 24 July 2023 for both proceedings.
[6] The current application before the Court is an application by the defendant for non-party discovery against the Ministry of Social Development (MSD).
[7] After hearing from counsel the Court confirmed that the application would be dealt with on the papers. This is the decision on that application.
[8] In the application the defendant seeks discovery of:
[9] The application is supported by an affidavit of Samantha Hita in which she attaches documents sent to the address of 40 Awakino Road, Te Kuiti and other material.
[10] Although the plaintiff initially consented to the application, Mr Depledge filed a more recent memorandum which focussed the plaintiff’s consent to a limited number of documents. During the course of the conference he also acknowledged that perhaps the time frame could be confined. Mr Fuller confirmed MSD will comply with any order of the Court but sought clarification of the extent of the orders, and the extent of the information actually requested. MSD also seeks costs as is usual on such applications.
[11] The jurisdiction for the application is under r 8.21 of the High Court Rules 2016. The power to make an order under r 8.21 is discretionary. For a non-party discovery order to be made, it must be necessary and the documents sought must be relevant to the issue(s) before the Court rather than being merely marginal.1 As the
1 Vector Gas Contracts Ltd v Contact Energy Ltd 2014 NZHC 3171 at [30].
Court observed in Vector Gas: “excursions on the train of inquiry are not to be encouraged in the case of non-party discovery”.2
[12] It is apparent from the defendant’s application, the affidavit filed in support, and as confirmed by the defendant during the telephone conference, that she considers the plaintiff and her former partner, Mr Rolleston, to have committed benefit fraud. She also seems to consider it be a responsibility of hers as executrix of the deceased’s estate to pursue that issue.
[13] As the Court attempted to explain to the defendant, the issue for the Court on this current application is, however, whether the documents sought in the application are sufficiently relevant to the issues in the two sets of proceedings before this Court to justify the non-party discovery sought.
[14] There are a number of principled and practical issues raised by the application. The first and immediately obvious point is that the documents relating to MSD’s dealing with Mr Rolleston are subject to his privacy interests and, in any event, are of no relevance to either of these proceedings before the Court.
[15] Next, even to the extent the documents may relate to the dealing between the plaintiff and MSD, they are not relevant to the issues in CIV-2021-419-126, which is the proceeding in which the application has been filed. The focus of the 2021-419- 126 proceedings is on whether the will was executed under undue influence of the defendant, (not the plaintiff), and whether the will is otherwise a valid document at law. The documents sought can have no relevance to the determination of those issues.
[16] However, some limited number of the documents sought may be relevant to the plaintiff’s alternative claim in the Family Court Protection proceeding as to her financial position and/or the possibility of disentitling conduct on her behalf (if it could be said that the disentitling conduct was known to the deceased). Given that the Court has ordered the proceedings are to be heard together, I treat the application as being effectively made in those proceedings as well.
2 At [29].
[17] However, as noted, before exercising its discretion to make such an order against a non-party such as MSD, the Court must be satisfied the order is necessary and the documents must be relevant to the issues in the proceedings.
[18] I agree with Mr Depledge that the refocused categories of documents that affect only the plaintiff could be relevant to her financial position and an order can appropriately be made in relation to some of those documents. The relevant time period must, however, conclude as at the date of the deceased’s death. The defendant argues that because some correspondence was received at the address after the deceased’s death the date range should extend to the following year. But the documents referred to after the deceased’s death are anodyne. In the plaintiff’s case for example, the letter from the Inland Revenue Department dated 20 July 2021 refers to a child support deduction of a modest weekly amount. It can have no relevance to either of the current proceedings.
[19] The defendant apparently considers that the plaintiff has been guilty of some sort of fraud involving the deceased and her occupation of the deceased’s property. The defendant has annexed a further document, a draft application to MSD which she says the plaintiff prepared in 2019. But as she notes in her affidavit, the application was never signed or completed by the deceased. With respect to the defendant, she appears to be under a misapprehension as to the issues that the Court will determine in the current proceedings. That is reflected by her recent unsuccessful application to strike out the plaintiff’s claim on the basis of the fraud that she continues to maintain. To the extent that the defendant intends to use these proceedings and, more particularly, this application as a means of obtaining information to advance a claim of fraud against the plaintiff, that would of itself be an abuse of process. I also note that the defendant purports to rely on the Criminal Disclosure Act 2008 and the information gathering provisions of the Social Security Act 2018 to support this application. These proceedings are not a vehicle for the defendant to pursue her investigation of benefit or other fraud by the plaintiff.
[20] For the above reasons, while there will be an order for non-party discovery, it will be limited.
Orders
[21] MSD is to disclose the following categories of documents:
(a) documents held by the MSD relating to authority for the plaintiff to reside at or occupy the property at 40 Awakino Road, Te Kuiti, and any terms upon which such occupancy was provided for;
(b) a statement of transactions showing payments by the MSD to the plaintiff from 1 January 2019 to 30 December 2020 (but not transactions/documents relating to any Accident Compensation Corporation claim or StudyLink account); and
(c) to the extent not covered by (b) a record of any approved financial assistance provided by MSD to the plaintiff from 1 January 2019 to 30 December 2020.
[22] MSD is to file and serve a list of documents complying with the above by 12 June 2023.
[23] The defendant as executor of the deceased’s estate is to pay MSD’s costs of complying with this order, including MSD’s reasonable solicitor/client costs. The ultimate incidence of the costs of this application between the plaintiff and defendant (both as to the defendant personally and as executrix) are, however, to be determined when the costs of the substantive proceedings are finally determined.
Venning J
Solicitors: P Depledge, Hamilton
Crown Law Office, Wellington
Copy to: Plaintiff
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URL: http://www.nzlii.org/nz/cases/NZHC/2023/1190.html