GROOMBRIDGE v BLANCHE [2020] NZHC 2394

GROOMBRIDGE v BLANCHE [2020] NZHC 2394 [15 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2033[2020] NZHC 2394BETWEEN HENRY GEORGE JAMESGROOMBRIDGE by his litigation guardianPamela Peijie MaPlaintiffAND ELEANOR BLANCHEDefendantHearing: 11 August 2020Counsel: C Cai and E Y Y Ho for plaintiffP J Stevenson for defendantJudgment: 15 September 2020JUDGMENT OF KATZ JThis judgment was delivered by me on 15 September 2020 at 3:00pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Douglas Burgess, AucklandFocus Law, AucklandCounsel: P J Stevenson, Barrister, AucklandIntroduction[1] Eleanor Blanche and Henry Groombridge were married on 13 March2004 and separated on 14 March 2007. On 11 April 2007, they entered into arelationship property agreement pursuant to the Property (Relationships) Act 1976.Mr Groombridge alleges that that agreement has been breached. He seeks specificperformance 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'slitigation guardian on various grounds, including that Ms Ma's interestsconflict with those of Mr Groombridge. The removal application is opposed byMr Groombridge/Ms Ma.Background[3] The relationship property agreement records that Mr Groombridgeis entitled to reside in a Newmarket apartment owned by Ms Blanche (or acomparable apartment) for the rest of his life. Ms Blanche also agreed to maintainMr Groombridge "in a similar lifestyle to that he currently enjoys", by meeting hishousing, food, utilities and other expenses. The agreement makes clear, however, thatMs Blanche is not required to maintain any other person with whom Mr Groombridgeshould 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 andMr Groombridge lived together at the Newmarket apartment from 2009 until 2017. InAugust 2017, however, Mr Groombridge was diagnosed with dementia, following hisadmission to hospital under the Mental Health (Compulsory Assessment andTreatment) Act 1992.[6] On his release from hospital Mr Groombridge was admitted to a securedementia unit in a Bupa rest home. He was subsequently transferred by Ms Ma to twofurther 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 paymentsto Mr Groombridge. The following month Ms Ma was evicted from theNewmarket 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'spersonal welfare guardian and property manager, pursuant to orders made under theProtection of Personal and Property Rights Act 1988.[8] In 2019, Woolford J appointed Ms Ma as Mr Groombridge's litigation guardianto 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 ofMs Blanche's application. Ms Ma objects to the admission of that affidavit on thebasis that it is irrelevant. Ms Blanche, on the other hand, is of the view that theaffidavit is necessary to inform the Court that an application to remove Ms Maas a welfare guardian has commenced in the Family Court. This, Ms Blanchesuggests, weighs against any suggestion that because Ms Ma is Mr Groombridge'swelfare 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 capacityas Mr Groombridge's welfare guardian. I understand that similar issues have beenraised in the Family Court, in the context of the application by Ms Evans to replaceMs Ma as Mr Groombridge's welfare guardian. For present purposes, the substanceof Ms Evans' allegations are of limited relevance, as determination of the issuesraised is for the Family Court, not this court. I accept, however, the fact that anapplication 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 herfather is also potentially relevant. I therefore admit the affidavit to the extent that itrelates 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 alitigation guardian for an incapacitated person if the prospective litigation guardiancan fairly and competently conduct proceedings and does not have interests adverseto those of the incapacitated person.[12] The test for removal of a litigation guardian is somewhat different – theoverarching issue is whether the removal of the litigation guardian is in the bestinterests of the person represented.1 In practical terms, however, if a litigationguardian does not currently meet the appointment criteria in r 4.35, their removal islikely to be in the best interests of the person represented. The r 4.35 criteria aretherefore clearly relevant to an assessment of the best interests of the personrepresented, although other factors may also be relevant.[13] Ms Stevenson, counsel for Ms Blanche, submitted that litigation guardians areanalogous to fiduciaries, and that the duty of independence is fundamental. She citedRe Goldman2 as authority for the first proposition, and Erwood v Glasgow Harley3 asauthority for the second. Ms Stevenson further submitted, with reference to Australianand Canadian case law, that litigation guardians must be "indifferent"4 to the outcomeof the proceedings.5[14] Ms Stevenson argued that Ms Ma is not "indifferent" to the outcome of theproceeding 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 be1 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 ER873 (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 (LitigationGuardian of) v Gronnerud Estate [2002] SCC 38 from Canada. Counsel also referred toKavuru v Ontario (Public Guardian and Trustee) [2015] ONSC 6344.reduced if she is able to live with Mr Groombridge in an apartment provided byMs Blanche. Further, Ms Ma is likely to benefit under Mr Groombridge's will, if hepredeceases her.[15] Whatever the position may be in Canada or Australia, the law of New Zealanddoes not require that a litigation guardian be entirely indifferent to the outcome of theproceeding. Rather, r 4.35(2)(b)(ii) requires that a litigation guardian not haveinterests in the litigation that are adverse to those of the incapacitated person. The ruledoes not therefore prohibit any interest in the outcome of the case, but only intereststhat conflict with those of the incapacitated person. It is not prohibited for a litigationguardian 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 alitigation guardian. For example, in Causer v Causer, Associate Judge Bell held thata woman's daughter could be her litigation guardian.6 His Honour considered theargument that an impartial stranger would do a better job. On balance, he consideredthat in the New Zealand context there was no incentive for a stranger to take on therole, as it generally is not remunerated and exposes litigation guardians to the risk ofhaving costs personally awarded against them. Further, a stranger would likelystruggle to develop a rapport with the incapacitated person.[17] In A v D, the defendants attempted to have a father removed as the litigationguardian of his children.7 Doogue J considered that while the father had an obviousinterest in his children being successful in their litigation, his interests were notadverse to theirs. Rather, on the face of it, Doogue J considered that their interestswere 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 shouldnot be removed if there was no reason to think that he was acting improperly orcontrary to Ms Goldman's best interests.8[19] Ms Stevenson noted that in Erwood v Glasgow Harley, Harrison J observedthat the obligation of independence is fundamental to the role of a litigation guardian.9In Erwood the litigation guardian elected to depart from an earlier decision of theincapacitated person not to engage in alternative dispute resolution. Harrison J,against the background of an incapacitated person alleged to be exploiting his mentalillness to manipulate the justice system, emphasised that a litigation guardian isrequired to exercise their own best judgement and does not necessarily have to abideby the wishes of the incapacitated person. The obligation of independence referred toby Harrison J was simply the obligation to bring an independent mind and carefuljudgement to the case. This decision does not therefore support the proposition thatlitigation guardians are required to be indifferent to the outcome of proceedings inwhich they are appointed. That issue was not addressed.[20] Rule 4.35 is clear. A litigation guardian must not have adverse interests tothe incapacitated person. There is nothing in the rule, or the case law, that precludesa litigation guardian from having any interest (such as an interest that is aligned withthat of the incapacitated person) in the outcome of the proceeding. The criticalrequirement is that the litigation guardian's interests do not conflict with those of theincapacitated 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 behalfof 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 inthis context another equivalent of a litigation guardian.(b) Does Ms Ma have interests in the proceeding that are adverse to thoseof Mr Groombridge?(c) What other factors are relevant to an assessment of what is in the bestinterests of Mr Groombridge?Is Ms Ma able to fairly and competently conduct proceedings on behalf ofMr Groombridge?[22] Ms Stevenson submitted that Ms Ma misled the Court in her affidavit of3 September 2019, and that such conduct demonstrates why she is not a suitablelitigation guardian. Ms Ma states in that affidavit that Mr Groombridge was to receiveincome from a trust established by Ms Blanche, to pay for his medical needs. Theagreement actually states, however, that Mr Groombridge was to be given sufficientincome 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 noexpress reference to medical expenses.[23] Ms Cai submitted, on behalf of Ms Ma/Mr Groombridge, that it will be arguedat trial that the agreement does require Ms Blanche to meet Mr Groombridge's medicalexpenses as part of the requirement to maintain him in a similar lifestyle to that whichhe enjoyed when the agreement was signed. Ms Ma's affidavit is not thereforemisleading, Ms Cai submitted, but simply sets out her interpretation of the agreement.[24] Although Ms Ma's characterisation of the agreement appears to be aninterpretation of the agreement, rather than a direct quote from it, this does notdisqualify Ms Ma from acting as litigation guardian. Although the relevant paragraphcould perhaps have been drafted with greater clarity, the same observation could bemade of a number of passages in the affidavits filed on behalf of Ms Blanche. In anycase, given that Ms Ma attached the agreement to her affidavit, the source materialwas 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 arecontrary to Mr Groombridge's best interests, including removing him from the resthome and taking him home. Such actions, however, appear to be actions taken byMs Ma in her role as welfare guardian rather than as litigation guardian. It is beyondthe scope of the current application to assess the merits of decisions Ms Ma has madeas welfare guardian in any detail. In the absence of cross-examination of Ms Ma andMs 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 twodays after New Zealand closed its borders to non-citizens and residents as a result ofthe worldwide COVID-19 pandemic, and shortly before the country moved to a level4 lockdown. It was widely publicised at the time that people over 70 were atparticularly high risk, and rest homes were closed to visitors. Given this context, I amnot persuaded by Ms Stevenson's submission that I should infer that Ms Ma's motivein taking Mr Groombridge home was simply to improve her position in this litigation.[26] A further matter Ms Stevenson advanced in support of the submissionthat Ms Ma could not fairly and competently conduct proceedings on behalf ofMr Groombridge was that, in separate Family Court proceedings, Ms Ma sought aprotection order on Mr Groombridge's behalf (while acting as his litigation guardianin that proceeding) which the Family Court found to be unjustified. The Family CourtJudge made adverse comments about Ms Ma bringing the application and awardedcosts against her personally, rather than Mr Groombridge.10 The allegations wereplainly insufficient to ground a protection order. Indeed, his Honour considered thatthe allegations were made simply to try and stop the respondent from contactingMr Groombridge.[27] Ms Ma clearly showed poor judgment in bringing and pursuing thatapplication. Given that she was legally represented at the time, it seems likely that shewas 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 whereshe 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 relevantfactors in determining whether Ms Ma is a suitable litigation guardian in thisproceeding.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 amore expansive legal test for the removal of a litigation guardian. Her proposed testwould 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 requiresthat Ms Ma not have interests in the litigation that are adverse to those ofMr Groombridge. The fact that she has interests in the litigation that are aligned withthose of Mr Groombridge is not disqualifying.[29] In my view Ms Ma's interests in this proceeding are not adverse to thoseof Mr Groombridge. I accept that she may receive some incidental benefits ifMr 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 istherefore 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 coulddiverge on the issue of how any damages award (if Mr Groombridge is successful)should be treated for relationship property purposes. That, however, is a hypotheticalfuture issue. Any conflict on this basis could only arise if Mr Groombridge issuccessful in this proceeding and would likely need to be addressed separately, in theFamily Court. Such hypothetical future concerns do not justify removing Ms Ma aslitigation guardian in this proceeding, at this time.Other factors that are relevant to the assessment of whether it is inMr 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 thatit is in Mr Groombridge's best interests for Ms Ma to continue as his litigationguardian. She submitted that the evidence demonstrates that Ms Ma has been adevoted wife to Mr Groombridge and has continuously cared for him during his periodof illness. In particular, Ms Ma has deposed that she has visited Mr Groombridge11 Causer v Causer HC Whangarei CIV-2008-488-830, 13 September 2010; A v D (1994) 7 PRNZ502 (HC).every day for three years while he has been in dementia care, usually for upwards ofsix hours a day, spending two hours on public transport to get there and back. Shortlybefore the COVID-19 level 4 lockdown Ms Ma took Mr Groombridge home from therest home and has cared for him full time at home since then. Ms Ma's affidavitannexes a report from Dr Yu-Min Lin, a geriatrician. Dr Lin observes that Ms Ma'scare for Mr Groombridge is difficult and time-consuming. He considers that she is atrisk of carer burnout. On the evidence before the court there is nothing to suggest thatMs Ma is not a genuinely caring and devoted wife.[32] This proceeding has now been afoot for approximately 12 months. From myreview of the court file it appears to have been conducted appropriately andcompetently. As is common in litigation, there have been some relatively minorinterlocutory issues, relating to discovery. There is nothing unusual or untoward inthat, however, and Ms Ma's position has no doubt been informed by the legal adviceshe has received. Overall, there is nothing to suggest that Ms Ma will not continue torun the proceeding competently for the next eight weeks, through to trial on2 November 2020. The fact that Mr Groombridge is legally represented provides afurther safeguard. Ms Ma appears to be conducting the litigation in accordance withlegal advice.[33] Ms Blanche seeks an order removing Ms Ma as litigation guardian and stayingthe proceeding until a replacement litigation guardian is appointed. There appears tobe 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 andMr Groombridge are of limited means and that instructing an independent litigationguardian would be prohibitively expensive. As a result, the likely consequence ofremoving Ms Ma would be that the proceeding could not continue. The consequenceof this, if there is any merit in the claims made in this proceeding, is thatMr Groombridge would be denied access to justice. That would clearly not be in hisbest interests.Conclusion[34] Of the various matters referred to above, the only factor that potentially weighsin favour of removing Ms Ma as Mr Groombridge's litigation guardian is that she hasbeen criticised in the Family Court for seeking a protection order against Ms Evans,when acting as litigation guardian for Mr Groombridge in related Family Courtproceedings. The jurisdictional requirements for the making of such an order did notexist, on the evidence. Ms Ma undoubtedly demonstrated poor judgment in pursuingthat application, although there is nothing to suggest that she was acting contrary tolegal advice in pursuing the protection order.[35] All of the other factors I have outlined above weigh in favour of Ms Macontinuing as Mr Groombridge's litigation guardian. She has demonstrated that sheis able to fairly and competently conduct the proceeding. She does not have intereststhat are adverse to those of Mr Groombridge. And, significantly, the practicalconsequence of removing Ms Ma as litigation guardian would likely be to bring thisproceeding to an end and deprive Mr Groombridge of access to justice, in the eventthat 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 Maas Mr Groombridge's litigation guardian.Result[36] The application to remove Ms Ma as litigation guardian for Mr Groombridgeis dismissed.[37] If costs cannot be resolved between counsel, any memorandum on behalf ofMr Groombridge/Ms Ma is to be filed by 25 September 2020. Any memorandum onbehalf of Ms Blanche is to be filed by 2 October 2020.____________________________Katz J