Bean v Bean - [2020] NZHC 171

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV 2019-463-000119

[2020] NZHC 171

UNDER Sections 21 and 66 of the Administration Act 1969

IN THE MATTER

Of the Estate of MARION HAZEL BEAN

BETWEEN

WARREN ONSLOW BEAN

Applicant

AND

CHERIE MARION BEAN

First Respondent

AND

CHERIE MARION BEAN, WARREN ONSLOW BEAN and WILLIAM JOHN

LYNCH as Executors of the Estate of MARION HAZEL BEAN

Second Respondents

Hearing: 13 February 2020

Appearances:

J R Hosking for Applicant

P J Crombie for the Second Respondents

Judgment:

14 February 2020

JUDGMENT OF GWYN J

(on leave to proceed under Part 19 High Court Rules

This judgment was delivered by me on 14 February 2020 at 12.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

Solicitors/Counsel:
J R Hosking, Barrister, Rotorua The Law Shop, Rotorua
P J Crombie, Barrister, Tauranga Cooney Lees Morgan, Tauranga

BEAN v BEAN [2020] NZHC 171 [14 February 2020]

Background

[1] This is an application for leave to bring the proceedings by way of originating application. The applicant, Mr Warren Bean, and the first respondent, Ms Cherie Bean, are the adult children of Marion Hazel Bean (Mrs Bean). For ease of reference I will refer to them as Warren and Cherie. Mrs Bean died on 25 June 2016. Probate of her will was granted on 6 October 2016.

[2] Warren and Cherie, together with Mr William Lynch, are executors of their mother’s estate. The executors are named as second respondents. Both Warrren and Cherie are beneficiaries under the will. They are in dispute as to the administration of the estate. The dispute principally relates to Cherie’s continued occupation of the property at Te Waerenga Road, Rotorua, which forms a significant part of the estate. The application alleges, in part, that Cherie is unwilling or incapable of carrying out her duties as executor and distributing the estate in accordance with Mrs Bean’s will. The allegation is that she has advanced her own interests ahead of her duty to preserve and distribute the estate.

[3]The substantive application seeks:

a) an order that the current executors of the estate be removed and an independent administrator, Andrew James Orme, solicitor of Rotorua, appointed in their place;

b) an order directing Cherie and her partner to vacate the Te Waerenga Road property within six weeks of the date of the order, leaving it in a clean and tidy condition; and

c) costs.

[4] By Minute of 3 December 2019 Lang J directed that the issue of whether or not leave should be granted to bring the proceeding by way of originating application should be determined at the first case management conference. He also directed that the proceedings should be served on both the first and second respondents personally,

noting they could be served on the solicitors acting for those parties provided they have authority to accept service.

[5] The solicitors for Cherie and for the second respondents (the executors) were served…

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 Bean v Bean

Details

AGLC: Bean v Bean [2020] NZHC 171
Case: [2020] NZHC 171
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of Bean v Bean involves the adult children of Marion Hazel Bean, who passed away on 25 June 2016. Her will was probated on 6 October 2016. The applicant, Warren Bean, and the first respondent, Cherie Bean, are disputing the administration of their mother's estate. The primary dispute concerns Cherie's continued occupation of the property at Te Waerenga Road, Rotorua, which is a significant part of the estate. Warren alleges that Cherie has prioritized her own interests over her duty to preserve and distribute the estate. The substantive application seeks the removal of the current executors, the appointment of an independent administrator, and for Cherie and her partner to vacate the Te Waerenga Road property.

The legal issues in this case revolve around the appropriate procedure for the proceedings, specifically whether leave should be granted to bring the proceedings by way of an originating application under Rule 19.5(1) of the High Court Rules. The court had to consider whether the exchange of a statement of claim and statement of defence was necessary, if interlocutory procedures such as discovery were required, whether the application was straightforward, and if there were multiple parties or the possibility of cross-claims. The court also had to determine whether the interests of justice favoured the use of an originating application in this case.

The court found that an originating application was appropriate given the circumstances. The application already detailed the issues sufficiently, and there was no indication that a statement of claim would better define the issues. Interlocutory procedures such as discovery were deemed unnecessary, as the background information was fully covered in the annexures to Warren’s affidavit. The application involved straightforward matters of fact and law. Moreover, Cherie had deliberately chosen not to engage with the application, which the court considered in favour of using the originating application process. Consequently, the court granted leave for the proceedings to be dealt with as an originating application. The court also made directions for the service of the originating application, the timeframe for opposition, and the scheduling of the hearing.

In summary, the court granted leave for the proceedings to be dealt with as an originating application, finding that it was in the interests of justice to do so. The court emphasized that the application already provided sufficient detail and that there was no need for further pleading or interlocutory procedures. The decision was based on the straightforward nature of the application and Cherie’s apparent refusal to engage with the proceedings.

Orders