Anstiss v Anstiss

[2023] NZHC 271

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2023-476-000002

[2023] NZHC 271

UNDER

the Trusts Act 2019 and the Administration Act 1969

IN THE MATTER

of the Estate of WILLIAM RUSSELL ANSTISS

BETWEEN

PHILIP RUSSELL ANSTISS, TRACEY LEE NEILL and SUZANNE LINDA MALOUF

Applicants

AND

OLIVE PEARL ANSTISS

Respondent

Hearing:	On the papers
Counsel:	T S Burtenshaw for Applicants
Judgment:	22 February 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 22 February 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ANSTISS v ANSTISS [2023] NZHC 271 [22 February 2023]

[1]        This is a without notice application by the applicants under r 19.5 High Court Rules 2016 for leave to bring a proceeding by way of originating application.

[2]        The applicants are children of William Russell Anstiss (William), who died on 6 September 2020. Probate of William’s last will and codicil was granted by the High Court at Wellington on 10 May 2022. The respondent is William’s widow, having married him in October 2015.

[3]        The applicants and the respondent are the executors and trustees of William’s estate. The applicants say that the respondent is not engaging with them to progress the administration of the estate and that a deadlock exists. The applicants consider the respondent may not wish to cooperate with them because they do not enjoy a close relationship with her and she may financially benefit if the proper administration of the estate is delayed. They seek to resolve the deadlock by obtaining an order for the removal of the respondent as a trustee and executor of the estate in reliance on s 21 of the Administration Act 1969 and s 112 of the Trusts Act 2019.

[4]        Rule 19.5 provides that the Court may permit a proceeding not specifically mentioned in rr 19.2-19.4 to be commenced by originating application “in the interests of justice”. Under r 19.5(2), an application may be made on a without notice basis.

The Court has made orders under r 19.5 in cases similar to this.1

[5]        In Hong Kong & Shanghai Bank Corporation Ltd v Erceg, Asher J described the sort of proceeding that lends itself to the originating application procedure in this way:2

… the type of proceeding suited to the originating application procedure is a straightforward application, not requiring detailed pleadings or interlocutory orders … [It] is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is the possibility of crossclaims or counterclaims.

1      Bean v Bean [2020] NZHC 171 and Re Hooper [2021] NZHC 576.

2      Hong Kong & Shanghai Bank Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [25].

[6]        As noted, the overarching test is the interests of justice, that is the just, speedy and inexpensive determination of a proceeding. In Solar Bright Ltd v Martin,3 Osborne J considered specific matters relevant to consideration of applications under r 19.5 and, in particular, whether:

(a)the exchange of a statement of claim and statement of defence is necessary to fully inform the parties;

(b)interlocutory application procedures such as for discovery may be necessary;

(c)the application is straight-forward; and

(d)there are, for example, multiple parties with the possibility of cross- claims.

[7]        Here, there is nothing that indicates the parties require the formal exchange of pleadings by way of statement of claim and statement of defence to define the issues. I cannot see that interlocutory procedures, such as discovery, will be necessary and the matter appears to be straight-forward involving the application of statutory tests to the facts of the case. The facts are of a narrow ambit and I agree with counsel’s assessment that any disputes of fact are likely to be limited to whether the respondent has engaged with the applicants and whether she wishes to continue as an executor and trustee of the estate and/or whether she should be replaced by another executor and trustee.

[8]        I am therefore satisfied this is an appropriate case to grant leave for the proceeding to be dealt with by way of an originating application under pt 19 High Court Rules.

Result

[9]I make the following orders:

3      Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and see Bean v Bean, above n 1 at [10].

(a)The applicants are granted leave to commence this proceeding by originating application under pt 19 High Court Rules 2016;

(b)The applicants are to promptly serve upon the respondent the originating application and supporting documents, together with the sealed judgment on the without notice application for leave to proceed under pt 19;

(c)The respondent is to file any opposition to the proceeding, together with affidavits or evidence in support, within 20 working days of service of the proceeding;

(d)The case is to be listed for a telephone conference before me at

12.30 pm on 29 March 2023 at which time I intend to set down the case for hearing and make any further directions that may be required;

(e)The parties should file memoranda by 27 March 2023 setting out proposed directions to take the case to hearing.

[10]Costs are reserved.

O G Paulsen Associate Judge

Solicitors:

Argyle Welsh Finnigan Limited (J E Argyle-Reed), Ashburton