KAWANA-MOUAT v MOUAT [2018] NZHC 1758

KAWANA-MOUAT v MOUAT [2018] NZHC 1758 [17 July 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2018-441-13[2018] NZHC 1758UNDER the Administration Act 1969 and theSuccession (Homicide) Act 2007IN THE MATTER of an application to follow assetsBETWEEN LAINE ANDREW KAWANA-MOUATPlaintiffAND SUSAN ELIZABETH MOUATDefendantHearing: 12 July 2018Appearances: G Hamlen-Williams for plaintiffS Kang for defendantJudgment: 17 July 2018JUDGMENT OF ASSOCIATE JUDGE JOHNSTONBackground and issue for determination[1] Bruce Kevin Mouat died intestate in Wellington on 27 July 2011. Hepre-deceased his wife, Susan Elizabeth Mouat (the defendant), his son from a previousrelationship, Laine Andrew Kawana-Mouat (the plaintiff) and his and the defendant'sdaughter, Geena Magdalena Mouat.[2] Letters of administration were granted to the defendant on 21 November 2011.Under the Administration Act 1969 she was the sole beneficiary of the estate. It iscommon ground that the value of the estate was $129,746.18.[3] In June 2012 the plaintiff commenced proceedings pursuant to the FamilyProtection Act 1955 for provision from the estate.[4] His claim was resolved in a deed of family arrangement entered into in July2012. Under this he received $62,375. The balance of the estate totalling $67,371.18was then paid out to the defendant.[5] Five years later the Crown charged the defendant with unlawful actmanslaughter under s 160(2)(a) of the Crimes Act 1960 in relation to the deceased'sdeath. She pleaded guilty. On 13 October 2017 she was convicted and sentenced.[6] On 28 February 2018 the plaintiff commenced this proceeding claiming thatunder the Succession (Homicide) Act 2007 the defendant was disentitled to inherit andclaiming $33,685.59 being half of the amount received by the defendant (on the basisthat if the defendant was not entitled to receive the $67,371.18 from the deceased'sestate then under the Administration Act the plaintiff and Geena were each entitled tohalf of what the defendant had received).[7] The plaintiff applies for summary judgment. Aside from the originatingdocumentation — notice of proceeding and statement of claim — the Court has theplaintiff's notice of application, the defendant's notice of opposition, the plaintiff'saffidavit in support of her application dated 23 February 2018 and the defendant'saffidavit in reply dated 11 April 2018.[8] This being an application for summary judgment the ultimate question iswhether the plaintiff is able to discharge the burden of establishing that the defendanthas no defence to his claim.1The plaintiff's case[9] It is common ground that the Succession (Homicide) Act was intended tocodify the law relating to when a person responsible for the death of another isdisentitled to take property on the deceased's death.1 Krukziener v Hanover Finance Ltd (2008) 19 PRNZ 162 at [26].[10] The plaintiff's case is that the Act applies here so as to disentitle the defendantto the $67,371.18 already referred to. Ms Hamlen-Williams advanced the argumenton the following basis:(a) a "killer" is disentitled to take property on an intestacy or under the willof his or her "victim";2(b) a certificate issued under the Sentencing Act 2002 is conclusiveevidence for the purposes of the Succession (Homicide) Act that thekiller is guilty of homicide;3(c) it follows that the defendant's conviction in this case, proved by thecertificate of conviction in evidence, disentitles her to the $67,371.18she has received;(d) in such circumstances the property is disposed of as if the killer hadpre-deceased his or her victim;4(e) the Administration Act provides that on the death of a surviving parenthis or her children inherit the estate in equal shares meaning that thedefendant and Geena, the deceased's only children, are entitled to halfeach of the $67,371.18.An arguable defence[11] The defendant says that she has an arguable defence and on that basis sheinvites the Court to decline summary judgment.[12] Before me Mr Kang developed this argument on several bases.2 See s 4 of the Act for definitions of "killer" and "victim", and s 7 (2).3 See s 14(1).4 See s 7(3).Appropriateness of summary proceeding here[13] Mr Kang referred to what he submitted was "an apparent conflict" between thedefinitions of homicide in the Crimes Act and the Succession (Homicide) Act. Thisconflict, he contended, arose because the Crimes Act includes amongst the categoriesof culpable homicide killing by unlawful act which might involve negligence whereasthe Succession (Homicide) Act defines the term so as to exclude a killing "caused bynegligent act or omission".[14] Section 150A of the Crimes Act defines the standard of care a breach of whichmay result in a person being guilty of culpable homicide for the purposes of s 160(2)(a)or (b). The section refers to "a major departure from the standard of care expected ofa reasonable person". That definition certainly excludes mere negligence.[15] It is true that, as at the date of the events which lead to the defendant'sconviction, s 150A did not apply to s 160(2)(a) (unlawful act manslaughter), the chargethe defendant faced, but only to s 160(2)(b) (omissions without lawful excuse toperform or observe legal duty). However, in R v Powell5 the Court of Appealconcluded that the "major departure" test applied to both s 160(2)(a) and (b).[16] Thus I see no conflict between the Crimes Act and Succession (Homicide) Actdefinitions. The whole point of s 150A of the Crimes Act — both in its original 2007form (applying to s 160(2)(b)) and in its expanded 2012 form (applying to both s160(2)(a) and (b)) was to clarify that culpable homicide did not include "merenegligence" but required a more serious breach. Exactly the same idea is reflected inthe definition of homicide in s 4 of the Succession (Homicide) Act which Mr Kangcorrectly says excludes negligent act or omission.[17] Mr Kang went on to submit that there are no authorities addressing thisconflict. That is correct. Possibly because there is no conflict.[18] His submission was that the summary judgment process was inapt to "makenew law".5 R v Powell [2002] 1 NZLR 666 (CA).[19] In relation to this he referred me to Autex Industries Ltd v Auckland CityCouncil6 where the Court of Appeal expressed reservations about the appropriatenessof the summary judgment procedure in cases involving novel points of law.[20] I reject this argument. First, on the plaintiff's case the definition of homicidein s 4 of the Succession (Homicide) Act is irrelevant so that in order to find for theplaintiff on the basis of his case as presented I would not need to consider therelationship between the Crimes Act and Succession (Homicide) Act definitions.Second, I do not see the conflict Mr Kang advances as I have already said. Third, inmy view, in Autex the Court of Appeal was talking about novel and complex areas oflaw. This case involves an exercise in statutory interpretation for which the summaryjudgment process is quintessentially appropriate.Whether the defendant's conviction is caught by the Succession (Homicide) Act[21] Mr Kang's second contention is that in determining the plaintiff's applicationfor summary judgment it is necessary for the Court to make an assessment of the natureof the defendant's offence so as to determine whether it falls within the definition ofhomicide in the Succession (Homicide) Act and more particularly whether it involvedmere negligence or something more serious.[22] Mr Kang submitted that there is insufficient evidence before the Court relatingto the circumstances of the offending to enable the Court — especially in the contextof a summary judgment application — definitively to determine whether or not thedefendant's killing of the deceased resulted from negligence, recklessness orotherwise.[23] I agree.[24] If the position is as Mr Kang contends that the plaintiff needs to establish byreference to the evidence of the incident itself the degree of the defendant's culpabilitythen, in my view, the evidence is inconclusive.6 Autex Industries Ltd v Auckland City Council [2000] NZAR 324 (CA).[25] All that is before the Court is the police summary of facts and the defendant'saffidavit evidence. Certainly, the defendant having pleaded guilty to the charge, sheis not in a position to deny the accuracy of the police summary of facts. But all thatsummary establishes is that the charge was laid pursuant to s 160(2)(a) of the CrimesAct (unlawful act manslaughter), that the defendant pushed the deceased in the courseof a heated argument, thereby establishing the unlawful act, being an assault, and thatthe deceased fell hitting his head which injury ultimately lead to his death in hospitala week and a half later. The defendant's affidavit evidence adds nothing to this.[26] However, the plaintiff's case is that it is unnecessary for the Court to make thatjudgment — that the definition of homicide in the Succession (Homicide) Act isirrelevant here.[27] That argument is based on s 14(2) of the Act.[28] Section 146A of the Sentencing Act 2002 provides:(1) On or at any time after sentencing a person for an offence against anyAct of unlawfully killing another person ... a court may certify that forthe purposes of the Succession (Homicide) Act 2007 the personconvicted is guilty of homicide of that other person .[29] Such a certificate is before the Court. It was issued on 11 January 2018. Itprovides:I, Nathan Lewis, Deputy Registrar of the High Court of New Zealand,Do Hereby Certify that at the sitting of the High Court at New Plymouth onthe 13th day of October 2017, SUSAN ELIZABETH MOUAT was convictedon the charge of manslaughter on the death of Bruce Kevin Mouat.[30] Although the certificate does not expressly say so it is clear that it was issuedpursuant to s 146A of the Sentencing Act and Mr Kang did not contend otherwise.[31] Section 14(2) of the Succession (Homicide) Act 2007 provides:(2) A certificate issued under section 146A of the Sentencing Act 2002 isconclusive evidence that a person convicted of an offence ofunlawfully killing another person is for the purposes of this Actguilty of the homicide of that other person .[32] Ms Hamlen-William's submission, which I accept, is that, where proceedingsunder the Succession (Homicide) Act are based on a conviction for culpable homicideunder the Crimes Act, and where a certificate of that conviction issued pursuant to s146A of the Sentencing Act is before the Court, the Court must accept that the personconvicted of the offence has committed a homicide for the purposes of the Succession(Homicide) Act.[33] An obvious question is why, then, is there a definition in s 4 of the termhomicide. The answer is that the Succession (Homicide) Act can apply even if thereis no prosecution of a killer. In such circumstances the plaintiff would need to establishthe homicide by calling evidence as to the circumstances of the killing and it is for thatpurpose that the definition exists.[34] Even if I am wrong in that conclusion, it seems to me that the plaintiff mightalso have advanced his case on the alternative basis that since the Court of Appeal'sdecision in R v Powell, to which I have already referred, the law has been that in orderfor a prosecution for culpable homicide pursuant to s 160(2)(a) of the Crimes Act tosucceed, it must be established that the accused's actions constituted more than merenegligence and involved "a major departure from the standard of care expected of areasonable person".[35] It follows that a conviction for unlawful act manslaughter under s 162(2)(a) ofthe Crimes Act must at very least have involved recklessness and therefore bydefinition falls within the s 4 definition in the Succession (Homicide) Act.Geena's potential claim[36] A further defence advanced on the defendant's behalf is that the deceased andthe defendant's daughter, Geena, may have a claim under the Family Protection Act1955.[37] As I understand it the argument is that whilst her mother, the defendant, was inreceipt of the $67,371.18 from the deceased's estate under the deed of familyarrangement, Geena would not have had a viable claim, but that if the defendant isdisentitled to those monies and obliged to disgorge half of them to the plaintiff, Geenamay have a claim.[38] That may well be right. But I do not understand how it can be contended thatthat happenstance should stand in the way of the plaintiff's claim, or somehow conferon the Court a discretion to circumvent the clear terms of the Succession (Homicide)Act.[39] In any event, the practical answer in the present circumstances, would appearto me to be obvious. First, Geena may have a claim for the remaining $33,685.59.Second it may still be possible for her to pursue a claim under the Family ProtectionAct. Be that as it may, I do not accept that if the plaintiff's succeeding in thisproceeding were to give rise to a theoretical claim on Geena's part, that is a reason fornot applying the law here.Quantum of damages[40] The final point raised on the defendant's behalf by Mr Kang relates to the reliefsought.[41] As Mr Kang submits s 7(3) of the Succession (Homicide) Act provides thatwhere a killer is not entitled to property as a result of its application any interest in theproperty that a killer not entitled to under the Act is to pass or be distributed as if thekiller had died before the killer's victim.[42] Had the defendant pre-deceased the deceased in this case the AdministrationAct would have required the net value of his estate — the $129,746.18 — to bedistributed equally between the plaintiff and Geena. Under the deed of familyarrangement entered into in July 2012 the plaintiff received $62,375. On one view,the plaintiff is only entitled to a further $2,498.09 as Geena is entitled to half of the$129,746.18 or $64,873.09.[43] Kang submitted that if the plaintiff was successful that is the approach thatshould be taken to damages.[44] Ms Hamlen-Williams submitted that s 7(3) applies only to the $67,371.18received by the defendant, that is to say the residue of the estate after the deduction ofthe $62,375.00 to which the plaintiff became entitled under the deed of familyarrangement.[45] This is not an especially easy matter of interpretation to resolve. On the onehand it might be said that in terms of s 7(2) the property that a killer is " not entitledto" is the net value of the estate. On that basis it might be contended — as Mr Kangcontends — that the property that must be distributed as if the killer had pre-deceasedthe victim under s 7(3) is also the net value of the estate. That would lead to theoutcome I have already outlined. On the other hand, as Ms Hamlen-Williamscontends, the plaintiff's proceeding and application for summary judgment in this caserelates only to the $67,371.18 and s 7(3) focuses on property "passing".[46] As at July 2012 when the deed of family arrangement was entered into, thedefendant had not been convicted of manslaughter and on the face of things was, interms of the Administration Act, entitled to the full $129,746.18 net value of thedeceased's estate. In the deed of family arrangement executed in July 2012 shealienated $62,375. As a result, as at the date of her conviction, the only property thathad passed to her and to which she had become disentitled by reason of the applicationof the Succession (Homicide) Act was the $67,371.18. That was the only property towhich s 7(2) could apply as at that date. On that basis my judgement is that the plaintiffis entitled to half of that $67,371.18 being the $33,685.59 that he claims in thisproceeding.[47] Although that may appear to disadvantage Geena it must recalled that thedefendant, Geena's mother, received a substantial benefit (something like $200,000)following the deceased's death from assets which the parties agree did not form anypart of the deceased estate. Geena might reasonably expect to benefit from that bothduring her mother's lifetime and after her death. And of course Geena may have aclaim to the other half of the money received by the defendant — $33,685.59.Conclusion[48] On the above bases my conclusion is that:(a) the plaintiff is entitled to summary judgment against the defendant inthe sum of $33,685.59;(b) the plaintiff is also entitled to interest on that sum at the relevantstatutory rate or rates from 27 July 2012 being one year from hisfather's death;(c) as to costs my preliminary view is that these should follow the event inthe usual way and that the plaintiff is entitled to costs on a 2B basis.But as I have not heard from counsel on costs I reserve them. If counselare unable to settle costs, as I would expect them to do, they may filememoranda and I will deal with them on the papers.Associate Judge JohnstonSolicitors:Chapman Tong Law, Wellington for plaintiffFairbrother Family Law, Napier for defendant