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NP v DP [2021] NZFC 7942

Published 09 June 2022

Discovery — personal order — "unless order" — jurisdiction of Family Court — Protection of Personal and Property Rights Act 1988, ss 63, 99B & 103 — Family Court Act 1980, s 11A — Lawyers and Conveyancers Act (Lawyers: Conduct and Care) Rules 2008, rr 13.5.3 & 13.5.1 — High Court Rules 2016, r 7.48 — Family Court Rules 2002, r 237 — NP v DP [2021] NZFC 5661 — SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 — Brown v Sinclair [2016] NZHC 3196 — Wihongi v Broad [2020] NZFC 7746, [2020] NZFLR 585 — Cutting v Liu [2014] 3 NZLR 224. The proceedings before the Court were in relation to actions of the first interested party, who had been exercising the enduring power of attorney powers (EPOA) granted to him by the subject person, who was the applicant's and interested parties' elderly aunt. This hearing was to determine: whether the first interested party had faulted on the discovery orders made at the previous hearing; whether the Court should make an "unless order" and debar the first interested party from participating in the proceedings if he continued to default; whether the interim personal order in respect of the subject person should be made final; and various other matters. The Court considered the evidence and concluded that the first interested party had not complied with the discovery order. The Court then went on to consider whether an "unless order" should be made pursuant to r 237 of the Family Court Rules. This provided a remedy if a party continued to default on interlocutory orders. The Court found that it had jurisdiction to grant an unless order in this instance, given the first interested party's repeated non-compliance with the discovery order. The Court made an order that the first interested party provide a specified list of documents by 2 September 2021; failure to comply with the order would result in the interested party being prevented from further participation in the proceedings. In relation to the personal order, all parties agreed the interim order should be made final, and the Court made a final order on the same terms as the interim order. Judgment Date: 12 August 2021. * * * Note: names have been changed to comply with legal requirements. * * *