Andrews v Andrews

[2022] NZHC 1380

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001221

[2022] NZHC 1380

UNDER

Part 18 High Court Rules

IN THE MATTER OF

An application under the Trusts Act 2019

BETWEEN

STEPHEN ROBERT ANDREWS

Plaintiff

AND

RICHARD JOHN ANDREWS, EVAN WILLIAM ANDREWS and DAVID

BRUCE BELL as trustees of the estate of ROBYN MARGARET ANDREWS

Defendants

Hearing:

30 May 2022

Appearances:

H J Mills for Plaintiff

A C Sorrell and A Borchardt for Defendants

Judgment:

13 June 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 13 June 2022 at 12 noon

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

ANDREWS v ANDREWS [2022] NZHC 1380 [13 June 2022]

Introduction

[1]                 This is a further proceeding in which Stephen Andrews challenges the administration of his late mother’s estate by the defendant executors and trustees.

[2]                 The mother, the late Mrs Robyn Andrews, had three sons: Richard, Stephen and Evan. In her will of March 2017, she left the residue of her estate to be divided equally between Richard, Evan and the Andrews-Runnymede Trust.1 Stephen is a beneficiary of the AR Trust.

[3]                 The will also provided that any loans Mrs Andrews had made to each of the three sons, and which were still outstanding, should be brought to account and charged against the share of each son in the residuary estate.

[4]                 Stephen was bankrupted shortly before his mother signed the will. He was discharged from bankruptcy three months before his mother died. In a judgment of 29 November 2021, Gordon J held that the loans expressed in the will to be due by Stephen and entities associated with him are correctly brought to account in calculating a net amount due to him (i.e. to the AR Trust) from the estate notwithstanding Stephen’s discharge from bankruptcy.2 Stephen’s bankruptcy and later discharge from bankruptcy thus have no effect on the terms of the will.

[5]                 The administration of the estate is largely completed. What remains at issue is the calculation of the debt due to the estate by Stephen. Stephen says that there is an approximate $700,000 difference between the calculation of his expert, Mr Parsons, and the KPMG analysis upon which the defendants rely.

[6]                 In these proceedings, the defendants seek summary judgment and/or strike out of both causes of action. They contend that Stephen has no standing to challenge the decisions of the trustees’ administration of the estate and that the first cause of action is res judicata. The trustees rely on s 126 of the Trusts Act 2019. They have also brought an application for security for costs.

1      The AR Trust.

2      Re estate of Andrews [2021] NZHC 3179 at [82].

[7]                 The critical issues I must determine include whether Stephen has standing to bring the proceedings, whether the AR Trust should be joined as a plaintiff, and whether the proceedings should be…