Anich v Anich

[2016] NZHC 63

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002935 [2016] NZHC 63

BETWEEN

PETER MICHAEL ANICH AND

VENESSA FRANCES ANICH Plaintiffs

AND

DARINKA ANICH as executrix

Defendant

Hearing:	15 December 2015
Appearances:	In Chambers (on papers)
Judgment:	11 February 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [Service and Representation]

This judgment was delivered by me on

11.02.16 at 11 a.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ANICH AND ANOR v ANICH as executrix [2016] NZHC 63 [11 February 2016]

[1]      The matter before me is an application for orders dispensing with service of an application brought under Part 18 of the High Court Rules and s 52 of the Trustee Act 1956 in relation to the affairs of Darinka Anich (“Darinka”).  The plaintiffs are the children of Darinka.   Darinka, it has been proved on the evidence before the Court, is the beneficial owner of a property at 11 Sheridan Lane, Freemans Bay. Darinka is suffering from dementia. She was declared mentally incapable by a medical practitioner on 16 April 2014.

[2]      The plaintiffs were appointed as attorneys under enduring powers of attorney in relation to their mother’s property on 2 April 2005.  Venessa, the second named plaintiff, was also appointed as her attorney in relation to the care and welfare of Darinka.

[3]      Darinka was appointed as trustee and executor under the will of her late mother, Kate which was executed on 7 April 1981.   Kate died on 20 June 1986. Another trustee and executor, George Yakich was also appointed but he died on 23

July 1981 and was apparently not replaced.

[4]      Kate bequeathed the property at 11 Sheridan Lane, Freemans Bay to Darinka under her will.  Darinka was therefore executrix and beneficiary under the will and entitled to the property at 11 Sheridan Lane, Freemans Bay.   The property was transmitted to Darinka as executrix in 1989.  No further steps were taken to transfer the property to Darinka as the beneficial owner.

[5]      On 2 November 2015 Sonia Anich, the sister of the plaintiffs, lodged a caveat against the title to the property.  Peter and Venessa Anich as attorneys seek to obtain orders transferring the property to Darinka in her personal right.   That step once completed will enable them as attorneys to take steps to resolve the issue about the caveat which in the meantime prevents them dealing with the property.

[6]      They  seek  that  their  proceedings  should  be  placed  before  the  Court  for resolution without being first served.  They also seek an order pursuant to HCR 4.30 that  the Court  order that  there be no  litigation  guardian  appointed  in  regard to

Darinka.   Logically this application is the first of the two orders sought in the application for directions as to service and representation.

[7]      What is sought in this case is an order pursuant to s 52 of the Trustee Act

1956, namely an order vesting the property in Darinka.   Probate of the will was granted to Darinka in 1988.

[8]      I am satisfied no litigation guardian need be appointed having regard to the orders that are sought in the statement of claim filed herein.  The statement of claim in its present form does not seek any relief that is adverse to the interests of Darinka. There is therefore no need to appoint a litigation guardian who would be expected in run of mill proceedings to investigate just such an issue, amongst other things and to come to a conclusion about how the defendant should respond to the proceedings against her, taking into account her best interests.

[9]      There is no doubt that Darinka, although an incapacitated person within the meaning of r 4.30, would otherwise require a litigation guardian. Because of the exceptional  feature  in  this  case  that  the  orders  sought  would  not  prejudice  her interests I conclude that this is a proper case to exercise to discretion in r 4.30. There will therefore be an order dispensing with the need for a litigation guardian.

[10]     I next consider the question of service of the proceedings.  The plaintiffs seek to dispense with personal service entirely.

[11]   The purpose of the application before the Court is to enable Darinka’s representatives to do what she could plainly have done had she been an executrix sui juris.  Of course, Sonia Anich is entitled to notice of any proceedings that have as their objective the removal of the caveat which she has lodged.  I am doubtful that any order made in the present proceeding would hinder or obstruct Sonia Anich in opposing any subsequent application that the plaintiffs might bring or the removal of that caveat.   To be on the safe side though, I should hear from counsel for the plaintiffs on the issue of what practical effects, if any, a order for transmission of the property would have on Sonia Anich as caveator.   Counsel should consider if it would be helpful if an affidavit from a suitably qualified person concerning that

issue ought to be filed together with, or alternative to, the making of submissions on the point.  Once counsel has responded to this judgment, I will consider the matter further.  Beyond appointing the plaintiffs.

[12]     Any additional  evidence  which  the  plaintiffs wish  to  put  forward  in  the proceeding is to be in the form of affidavits which are to be filed and served within

20 working days of the date of this order.

[13]     The  proceeding  is  to  be  placed  in  the  Duty  Judge  list  for  further consideration.

J.P. Doogue

Associate Judge