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 with the proceedings, together with Lang J’s Minute, on 10 December 2019. Cherie has taken no steps following receipt of service. Mr Crombie for the second respondents, has filed a memorandum indicating the second respondents’ intention to abide the decision of the Court, but indicating a willingness to provide any further information that may be useful to the Court.

Rule 19.5(1) application

[6]    The telephone conference before me on 13 February was to consider the application under R19.5(1) of the High Court Rules for leave to bring the applications for removal of the trustees, appointment of an independent administrator and vacation of the Te Waerenga Road property, by way of originating application.

[7]    Rule 19.5(1) provides that the Court may permit a proceeding not specifically mentioned in rr 19.2 to 19.4 to be commenced by originating application “in the interests of justice”.

[8]    Originating applications do not require full pleading or the application of the High Court Rules which apply to ordinary proceedings brought by statement of claim under Part 5.

[9]    While resort to originating applications is exceptional, rather than commonplace,1 the procedure is not confined to cases in which there is no opposing party.2 The overarching test is the interests of justice - that is, the just, speedy and inexpensive determination of the proceeding.

[10]   In Solar Bright3 Osborne J canvassed the specific matters relevant to consideration of an application under r 19.5. He particularly had regard to whether:

1 Solar Bright Limited v Martin [2019] NZHC 300, at [18].

2 Commissioner of Inland Revenue v Muir [2013] NZHC 2881, at 16.

3 Above, n 1, at [20]-[24].

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

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

(c)it is a straightforward application;

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

[11]I have considered each of those factors in relation to this application.

[12]   Nothing in the documents filed indicates that a document of the greater length of a statement of claim would better define the issues put before the Court by the applicant, which are set out in considerable detail in the application, memorandum of counsel and Warren’s affidavit in support of the application. Regrettably, the first respondent has chosen not to respond to that material, despite having been served. There is no reason to suppose, on the material currently before the Court, that her passive response would change in response to a statement of claim.

[13]   Nor is there anything before me to suggest that interlocutory procedures such as discovery are necessary or would assist the parties or the Court. The background to the current situation is fully canvassed in the annexures to Warren’s affidavit, which include the history of Cherie’s application under the Family Protection Act 1955, in which she sought further provision from her mother’s estate. That application was ultimately struck out by the High Court,4 with Katz J observing that the issue before her was whether Cherie’s claim was “clearly untenable”. In striking out the claim she concluded that it was.5

[14]   It seems to me that the application does involve straightforward matters of fact and law, including the terms of Mrs Bean’s will (which have already been canvassed

4   Bean v Bean [2019] NZHC 20.

5 Above, n 4, at [31].

in Katz J’s judgment) and the provisions in the Administration Act 1969 relating to the removal of an administrator.

[15]   There are not multiple parties in this proceeding and the possibility of cross- claims does not arise.

[16]   I reluctantly conclude from the history of this matter that Cherie has deliberately chosen not to engage with the applicant’s application. She may well perceive there is advantage to her in that stance, in that she and her partner continue to occupy the Te Waerenga Road property in the meantime. Having regard to that conclusion too, I think this is a case where the interests of justice tell strongly in favour of the originating application process, so that the steps necessary to enable distribution of the estate may occur.

[17]   In all of these circumstances I conclude that this is an appropriate case in which to grant leave for the proceedings to be dealt with as an originating application under Part 19 of the High Court Rules 2019. I make a direction accordingly.

[18]I also make the following directions:

a)       The applicant is to promptly serve the originating application and supporting documents, together with this Judgment, on the respondents.

b)       The first respondent, Cherie, is to file any opposition to the proceedings, together with any affidavit evidence in support, within ten working days of service of the proceedings.

c)       A two hour fixture has been confirmed by Rotorua Registry, and is set for 10am on Thursday 27 February 2020. Mr Crombie is excused from attendance at the hearing and at any further conferences.

d)       The hearing of the application will proceed on the basis of written submissions and any affidavit evidence filed. The applicant’s submissions are to be filed five days before the hearing; any submissions on behalf of the first respondent are to be filed three days before the hearing.

Costs

[18] Costs are reserved.

Gwyn J