New Zealand Case Law: Decisions & Judgments

Topic

Capacity to litigate

Legal area

Court

4 Aug 2020

REMNANT v MILLS [2020] NZHC 1937

Citation

[2020] NZHC 1937
Court

High Court

Court appointed Fleur Mills as litigation guardian for Jeffrey Hargen Mills in respect of this High Court proceeding because medical evidence established vulnerability under stress that may impair his capacity to litigate; appointment is conditional on Ms Mills deferring to Mr Mills when he is lucid; the court refused to grant the without‑notice extension of time and noted it has no jurisdiction to appoint a guardian for separate Family Court proceedings without a separate application.
21 May 2020

An application by PENELOPE JEAN CRON for appointment as litigation guardian for Warner James Mauger [2020] NZHC 1074

Citation

[2020] NZHC 1074
Court

High Court

Court granted leave to proceed by originating application under r 19.5(1) and held that, as a general proposition, an attorney with general authority under s 97(2) PPPRA may act to bring or defend proceedings (and thus qualifies as a litigation guardian under r 4.29(a)(i)), but because there was serious doubt about validity of the enduring power of attorney (capacity at time of grant) the court appointed Penelope Cron as litigation guardian under r 4.35(2) to conduct proceedings on behalf of Warner James Mauger against Simon Tucker and Louise Hermansson; the court also dispensed with service…
20 Aug 2019

ERWOOD v HOLMES [2019] NZHC 2049

Citation

[2019] NZHC 2049
Court

High Court

The litigation guardian (Minchin) did not breach duties — he acted independently and in the plaintiff's best interests while still appointed and any omission to disclose the psychiatrist's letter would not have produced a different outcome because subsequent court processes repeatedly declined to set aside or disturb the settlement; the instructing solicitor (Holmes) did not breach duties because he did not receive the psychiatrist's letter before settlement and his deductions of fees were lawful and reasonable; accordingly all causes of action against Holmes and Minchin are dismissed.
23 Nov 2018

JOHANSEN v JOHANSEN [2018] NZHC 3063

Citation

[2018] NZHC 3063
Court

High Court

Because the respondent is medically incapacitated and cannot execute documents or meaningfully participate, and because the trustees validly appointed a replacement trustee under the trust deed, the Court had jurisdiction under s 52(1)(b)(i) Trustee Act 1956 to vest the Paeroa property in the named trustees; accordingly leave to proceed by originating application was granted and service dispensed with.
23 Mar 2017

ERWOOD v HOLMES & ORS [2017] NZHC 556

Citation

[2017] NZHC 556
Court

High Court

No appointment of a litigation guardian because there was no recent medical evidence showing current incapacity; no appointment of an amicus or continuation of counsel to assist because there was no public interest justification and the amicus role should be neutral and not used to advance the plaintiff's private case; if the plaintiff requires representation he must obtain private counsel or legal aid.
18 May 2016

Goldman v Grant [2016] NZHC 1010

Citation

[2016] 3 NZLR 331
Court

High Court

Application to remove the litigation guardian dismissed because the applicant failed to prove removal was in the incapacitated person's interests; the appointment complied with the Rules or was intra vires, the guardian was competent, there was no evidential basis of adverse interests or improper conduct, and the plaintiff preferred the guardian.
26 Jun 2013

MAUGER V APATU & ORS CA10/2013 [2013] NZCA 262

Citation

[2013] NZCA 262
Court

Court of Appeal

Despite a substantial unexplained delay, the Court granted an extension because the proposed fresh evidence (on mental capacity) could materially affect the factual matrix, the key issue substantially overlaps with a pending bankruptcy appeal thereby reducing prejudice, and permitting the appeal to proceed with timetabled applications for new evidence better serves the overall interests of justice.
13 Sept 2010

E D CAUSER V G C CAUSER AND ANOR HC WHA CIV-2008-488-000830

Citation

openlaw-cba6adaf_a488_49b7_a51f_824b56c77e35.pdf
Court

High Court

Medical evidence established the plaintiff is incapacitated within r 4.29/r 4.35; the proposed guardian (daughter) is able to fairly and competently conduct proceedings and does not have interests adverse to the plaintiff, therefore the court will appoint her as litigation guardian subject to a condition that any withdrawal, abandonment or settlement requires prior court approval.
3 Jun 2009

ROMANA V MCKENZIE & ANOR HC AK CIV 2008-425-000210

Citation

openlaw-725ff017_5a13_48ec_83ec_0bdb83504f66.pdf
Court

High Court

The Court held that the plaintiff's pleading and discovery non-compliance were substantively deficient and, although the claim could be struck out, the plaintiff was given a final opportunity: file an amended statement of claim complying with s 37 and r 5.33 and a compliant affidavit of documents, and provide security for costs of $15,000 per defendant by 3 July 2009; failure to do so will result in the proceeding being struck out. Costs awarded to defendants on a 2B basis.