Adams v Adams - [2023] NZHC 608

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-0034

[2023] NZHC 608

UNDER Property Law Act 2007, Trusts Act 2019, Declaratory Judgments Act, Administration Act 1969

IN THE MATTER OF

of an application for an order for sale of real property and distribution of the proceeds and an application for directions

BETWEEN

SONIA ADAMS

Plaintiff

AND

DESMOND ADAMS

First Defendant

PAULINE PARAKU

Second Defendant

Hearing: 14 March 2023

Appearances:

A Osama for the Plaintiff (Respondent)

J C LaHatte for Chemell Paraku (Applicant) P A Depledge for the First Defendant

Judgment:

28 March 2023

JUDGMENT OF ASSOICIATE JUDGE BRITTAIN

This judgment was delivered by me on 28 March 2023 at 2.00 pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:

Ord Legal, Wellington for Plaintiff
McKenna King Dempster, Hamilton for First Defendant Mike Walmsley, Paeroa for Second Defendant

SONIA ADAMS v DESMOND ADAMS [2023] NZHC 608 [28 March 2023]

[1] Marion Te Omiraki Putere1 (the deceased) previously owned a property at 37 Roto Street, Te Kauwhata (the property). The deceased died on 6 July 1990, leaving a will dated 3 December 1986 (the will).

[2] Under the will, the deceased appointed a solicitor, Ian Douglas Todd, as her executor and trustee. The deceased’s estate was bequeathed to her trustee, who was directed to pay debts and expenses and to hold the residue on trust, in equal shares, for the deceased’s surviving children that attained the age of 20. The deceased was survived by ten of her children, including the first and second defendants. All have been served with the proceeding.

[3] On 29 April 1991, the property was transferred into the name of Mr Todd, as the executor of the deceased’s estate. On 26 May 2006, Mr Todd transferred the property to the plaintiff, a grandchild of the deceased, and the first and second defendants, children of the deceased. The circumstances that led up to that transfer remain unclear, as discussed further below.

[4]The plaintiff seeks two alternative remedies in the proceeding:

(a)A declaration that the plaintiff and the first and second defendants hold the property on constructive trust for the beneficiaries of the deceased’s estate and an order that the plaintiff and the first and second defendants transfer the property to Alan Wilson. Mr Wilson is a solicitor who has agreed to act as executor of the deceased’s estate and to complete administration of the estate in accordance with the deceased’s will. That would result in Mr Wilson selling the property, paying the estate’s debts and distributing the residue according to the terms of the will.

(b)Alternatively, the plaintiff seeks orders under s 339 of the Property Law Act 2007, requiring the property to be sold and the proceeds of sale distributed to the beneficiaries of the deceased’s estate. As pointed out by Peters J in a minute dated 11 October 2021, the cause of action under

1 This is the deceased’s name as spelt in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Adams

Details

AGLC: Adams v Adams [2023] NZHC 608
Case: [2023] NZHC 608
Decision Date: 28 March 2023

CaseChat Overview and Summary

The case of Sonia Adams v Desmond Adams involves a dispute over the administration of the estate of Marion Te Omiraki Putere, who passed away in 1990. Sonia Adams, a grandchild of the deceased, and Desmond and Pauline Adams, who are children of the deceased, are the primary parties involved in the dispute. Sonia is seeking a declaration that the property at 37 Roto Street, Te Kauwhata, is held on constructive trust for the beneficiaries of the deceased's estate, or alternatively, an order for the sale of the property and distribution of the proceeds according to the deceased's will. The court must decide whether to allow Chemell Paraku, a granddaughter of the deceased, to join the proceeding as a party.

The legal issues before the court include whether the applicant's presence is necessary to adjudicate on and settle all questions involved in the proceeding, and if the applicant has any rights that may be affected by the outcome of the proceeding. The court considered the principles of joinder under the High Court Rules and the impact of the proceeding on the applicant's rights. The applicant argues that the collective approach taken by Māori requires her to be joined to the proceeding, while the plaintiff and defendants argue that the applicant has no rights that might be affected by the outcome.

The court determined that the applicant's assertion of broad whānau support for the establishment of a trust is not substantiated by any pleadings, notices of appearance, or evidence. The court found that the applicant cannot point to any substantive rights that she possesses, whether sourced in tikanga or otherwise, that might possibly be affected by the relief sought by the plaintiff in this proceeding. The court concluded that the applicant merely relies on tikanga as providing a procedural right to be heard. Given that the applicant has not established that she has rights that can be impacted upon by the proceeding, the court declined to exercise its discretion to allow the joinder.

The final orders of the court are that the application for an order joining Chemell Paraku as a party to this proceeding is declined, and the proceeding is adjourned to a telephone conference in the week commencing 17 April 2023, to be allocated by the Registrar. The parties are requested to confer and to file a joint memorandum outlining any further affidavits required, an estimate of the hearing time required, and any other pre-trial directions. Costs on this application should lie where they fall.

Orders