T E HALCROW v J S MCNAMARA [2017] NZHC 539

T E HALCROW v J S MCNAMARA [2017] NZHC 539

Strike out refused because delays were not inordinate or inexcusable, most deponents remain available for cross-examination, evidentiary and credibility issues (including hearsay and the unavailability of the deceased) are matters for the trial judge to assess at trial, and the plaintiff's pleadings and affidavits disclose a reasonably arguable claim.

Citation
[2017] NZHC 539
Parties
Substituted Plaintiff/respondent: Tanya Ellen Halcrow; Defendant/applicant as Executor and Trustee of the Estate of Anna Dalgarno: Jane Siobhan McNamara
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 March 2017
Procedural Posture
Application for Further Provision Under the Law Reform (testamentary Promises) Act 1949 / Interlocutory Strike Out Application Hearing (application Dismissed)
Outcome
Strike out application dismissed; security for costs application withdrawn and dismissed; matter listed for chambers review to progress interlocutory timetable and trial directions
Legal Topics
Strike Out, Security for Costs, Delay, Hearsay Evidence, Substitution of Party, Tracing, Letters of Administration
Estate/probate Civil Procedure Trusts Administration Testamentary Promises Strike Out Security for Costs Delay +4 more

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Parties

Tanya Ellen Halcrow

Substituted Plaintiff/respondent

Jane Siobhan McNamara

Defendant/applicant as Executor and Trustee of the Estate of Anna Dalgarno

Procedural Posture

Application for Further Provision Under the Law Reform (testamentary Promises) Act 1949 / Interlocutory Strike Out Application Hearing (application Dismissed)

Legal Issues

  1. 1 Whether the pleading discloses a reasonably arguable cause of action under the Law Reform (Testamentary Promises) Act 1949
  2. 2 Whether delay or the unavailability of a deceased witness causes prejudice sufficient to justify striking out the claim
  3. 3 Whether the affidavit evidence (largely hearsay) precludes the claim proceeding to trial

Ratio Decidendi

Strike out refused because delays were not inordinate or inexcusable, most deponents remain available for cross-examination, evidentiary and credibility issues (including hearsay and the unavailability of the deceased) are matters for the trial judge to assess at trial, and the plaintiff's pleadings and affidavits disclose a reasonably arguable claim.

Court Disposition

Strike out application dismissed; security for costs application withdrawn and dismissed; matter listed for chambers review to progress interlocutory timetable and trial directions

Orders

  • Strike out application dismissed
  • Security for costs application withdrawn and dismissed