Bassett v Jones - [2023] NZHC 768

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1800

[2023] NZHC 768

UNDER Part 19 of the High Court Rules 2016 and s 133 of the Trusts Act 2019

IN THE MATTER OF

the estate of Margaret Wilma Jones of Auckland, deceased

BETWEEN

SAMUEL MICHAEL WILLIAM BASSETT and MASON GRANT WEYMOUTH

LOCKHART as administrators in the estate of MARGARET WILMA JONES

Applicants

AND

NICOLA ANN JONES

First Respondent

Cont:/

Hearing: 29 March 2023

Appearances:

A A H Low for Applicants

A W Dixon for First Respondent

No appearance for Second Respondent J C Z Loh for Third Respondent

Judgment:

5 April 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 5 April 2023 at 3.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
KP Legal, Auckland for Applicants
Patterson Hopkins, Auckland for First Respondent
Mackenzie Elvin Law, Tauranga for Second Respondent Inder Lynch, Manukau for Third Respondent

BASSETT v JONES [2023] NZHC 768 [5 April 2023]

MICHAEL ALEXANDER JONES
Second Respondent

KATHERINE MARY JONES
Third Respondent

[1] Margaret Wilma Jones died intestate in September 2018. Her husband, Angus Dixon Jones, having died intestate before her, Mrs Jones’s estate is comprised of two significant assets: a house and land at 70A Marine Parade, Mellons Bay (the Home); and a collection of toys and war memorabilia.

[2] Mrs Jones’s daughters, Nicola Ann Jones (Nicky) and Katherine Mary Jones (Katy), and son, Michael Alexander Jones (Michael), were appointed administrators of her estate in October 2019. However, they were replaced as administrators by the applicants in this proceeding, Samuel Bassett and Mason Lockhart (the Administrators), in July 2021. It appears that issues had arisen as to the division of the estate.

[3] Ordinarily, the Administrators would hold the estate in trust for Mrs Jones’s three offspring in equal shares.1 However, Nicky claims a half share in the Home arising by way of proprietary estoppel. She has also signalled claims for further provision from Mrs Jones’s estate under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949.

[4] The Administrators seek directions from this Court under s 133 of the Trusts Act 2019.2 The essence of their application is for direction whether to sell the Home now, or to postpone the sale pending resolution of Nicky’s claims. If the latter, the Administrators seek directions to ensure Nicky’s claim is brought promptly and to have her make a financial contribution to the estate in light of her ongoing occupation of the Home. The applicants also seek orders confirming their indemnity in relation to the sale of the Home, and their costs in this proceeding.

Position of parties

[5] Nicky opposes the immediate sale of the Home, preferring that the sale be postponed until her claims have been resolved. She says that a sale would prejudice her proprietary interests in the Home arising under the doctrine of proprietary estoppel. Nicky proposes that she bring proceedings 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 Bassett v Jones

Details

AGLC: Bassett v Jones [2023] NZHC 768
Case: [2023] NZHC 768
Decision Date: 5 April 2023

CaseChat Overview and Summary

In Bassett v Jones, the High Court of New Zealand was asked to determine the appropriate course of action regarding the sale of a property owned by the deceased, Margaret Wilma Jones. The Administrators of Mrs Jones's estate, Samuel Bassett and Mason Lockhart, sought directions on whether to sell the property immediately or postpone the sale pending the resolution of a claim by one of the beneficiaries, Nicola Ann Jones (Nicky). Nicky claimed a half share in the property by way of proprietary estoppel, arguing that it would be unconscionable for the Administrators to depart from her expectation of inheriting a half share. The Administrators argued for the immediate sale of the property, while Nicky opposed it, preferring that the sale be postponed until her claims have been resolved.

The court had to decide whether there was a serious question to be tried regarding Nicky's proprietary estoppel claim, and if so, whether the balance of convenience favoured postponing the sale of the property. The court found that Nicky's affidavit established arguable grounds for her claim, and therefore, there was a serious question to be tried. In terms of the balance of convenience, the court took into account Nicky's potential loss of her half share interest in the property if it were sold, as well as the concerns raised by the other beneficiaries about the property's deteriorating state and Nicky's capacity to maintain it. The court decided that the balance of convenience favoured postponing the sale of the property, subject to strict conditions ensuring the prompt resolution or pursuit of Nicky's claims and requiring her to meet outgoings.

The court further held that postponing the sale of the property would serve overall justice, considering Nicky's significant personal effort in the property and the care of her parents, as well as her emotional attachment to the property. The Administrators' costs in the proceeding were to be met from the estate. The court made orders in accordance with the joint proposal of counsel, which included postponing the sale of the property subject to the conditions outlined above, and requiring Nicky to meet the greater of the market rental or the total cost of outgoings in respect of the property.

Orders