Applicant by Fox - [2018] NZHC 2533

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1055

[2018] NZHC 2533

IN THE MATTER OF An application by KENNETH JOHN FOX as sole executor and trustee of the ESTATE OF EILEEN PHYLLIS FOX

BETWEEN

KENNETH JOHN FOX

Applicant

Hearing: On the papers

Appearances:

J Nedeljkov on instruction from K Davenport QC for the Applicant

Judgment:

27 September 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 27 September 2018 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel:
K Davenport QC, Barrister, Auckland J Nedeljkov, Barrister, Auckland

Solicitors:
B Wyber, Sellars & Co, Helensville

Re an application by Fox [2018] NZHC 2533 [27 September 2018]

Introduction

[1] The applicant, Kenneth Fox, who is the sole executor and trustee of the estate of Eileen Phyllis Fox and who is also a beneficiary of the estate as to a 6/8th share, seeks a direction under s 53 of the Administration Act 1969 (the Act) permitting payment of the 1/8th share bequeathed to his late half sister Margaret Rose Kiata (Margaret) into his solicitor’s trust account on terms.

Background

[2] Margaret died without a will and none of her five children have yet applied for Letters of Administration. It is possible (but unconfirmed) that at the time of her death she may also have remained married to her estranged husband, Wally Kiata. He has similarly not applied for Letters of Administration.1

[3] Until recently, the same applied in respect of the estate of Jane Elizabeth Frances Fox (Jane), another half-sister of the applicant and beneficiary of the remaining 1/8th share of Eileen’s estate. However, her son Howard Fox has recently applied for and been granted Letters of Administration for her estate so that similar orders are not required in that respect.

[4] Initially2 Kenneth applied for general directions as to the mechanism by which Eileen’s estate could be distributed to Margaret’s (and at that stage Jane’s) estate.

[5] On 21 June 2018 Courtney J made orders setting the application down for formal proof and directing that no documents (including synopses, affidavits or memoranda) were to be filed without leave of the Court. In the event, no such leave has been sought.

1 This information was first advised to the Court on 26 September 2018. Mr Wally Kiata was not among those directed to be served with the applicant’s originating application (refer Minute of Associate Judge Bell dated 30 May 2017). I dispense with service of the originating application on him but direct that he be served with a copy of this judgment.
2 By Originating Application dated 26 May 2017 para 1(a). In the same Originating Application other orders were sought which are not germane to this judgment. Some were disposed of by way of the judgment of Brewer J (Fox v Fox [2018] NZHC 1021 [11 May 2018]).

[6] On 27 July 2018 counsel filed a memorandum in support…

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 Applicant by Fox

Details

AGLC: Applicant by Fox [2018] NZHC 2533
Case: [2018] NZHC 2533
Decision Date: 27 September 2018

CaseChat Overview and Summary

The case involves Kenneth John Fox, the sole executor and trustee of the estate of Eileen Phyllis Fox, who has applied for a direction under section 53 of the Administration Act 1969. Kenneth Fox is also a beneficiary of Eileen’s estate, entitled to a 6/8th share, and seeks to manage the 1/8th share bequeathed to his late half-sister, Margaret Rose Kiata. Margaret died intestate, and none of her five children have applied for Letters of Administration. The legal issues in the case revolve around the appropriate method for distributing the 1/8th share of Eileen’s estate to Margaret’s estate, given the absence of an administrator for Margaret’s estate.

The court was required to determine whether the proposed directions for handling the distribution of the 1/8th share were pragmatic and sensible, considering the interests of Margaret’s children and the obligation of Kenneth to finalize the administration of Eileen’s estate. The court considered whether the proposed directions adequately protected the interests of Margaret’s children and facilitated the completion of the estate distribution as required by law.

The court ruled that the proposed directions were pragmatic and sensible, providing adequate protection for the interests of Margaret’s children and enabling Kenneth to finalize the administration of Eileen’s estate. The court directed that once the estate of Eileen Phyllis Fox is completed, a 1/8th share of its value should be transferred into Kenneth’s solicitors’ trust account on interest-bearing deposit, pending a grant of Letters of Administration for Margaret Rose Kiata’s estate. The court also directed that the 1/8th share should be released to the administrator of Margaret’s estate upon receipt of a sealed grant of Administration. The court further directed that copies of the judgment should be sent to Margaret’s children and Mr. Wally Kiata and reserved the right for the beneficiaries to apply for a variation of the order if they prefer another trust account for payment.

Orders