Billingham v Wilson - [2014] NZHC 453

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4642 [2014] NZHC 453

UNDER the Administration Act 1969, the Trustee
Act 1956 and the Public Trust Act 2001

IN THE MATTER of the Estate of RONALD ALFRED BILLINGHAM, late of Auckland in New Zealand, Retired, Deceased

BETWEEN JAN MAREE BILLINGHAM Plaintiff

ANDRICHARD GEORGE WILSON and MARCUS ANDREW HUGH RUDKIN Defendants

Hearing: 12 March 2014

Appearances: P A Fuscic for the Plaintiff
RMK Hawk for the Defendants
G C Jenkin for the deceased's step-daughters, Kerry Linda
Mackie, Tracy Lynette Donald and Lee Sandra Martell

Judgment: 12 March 2014

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:
Mr P A Fuscic, McVeagh Fleming, Solicitors, Auckland
Mr RMK Hawk, Jackson Russell, Solicitors, Auckland
Mr G C Jenkin, Barrister, Auckland
Mr B K Dell (instructing solicitor for the deceased’s step-daughters), Bruce Dell Law, Solicitors,
Auckland

BILLINGHAM v WILSON and RUDKIN [2014] NZHC 453 [12 March 2014]

[1] There is an application by the plaintiff for leave to commence a proceeding by originating application and the originating application itself is before the Court. What I will call the substantive application – the originating application – sought two main orders:

(a) A direction that the defendant executors formally prove the last will of Mr Ronald Billingham; and

(b)An order that defendant executors be removed and be replaced by an administrator with the Public Trustee proposed.

[2] For reasons recorded in the submissions for the plaintiff dated 5 March 2014 the formal proof application is not being pursued. In essence, probate was granted by the Court notwithstanding the fact that a caveat had been lodged. The other application is being pursued.

[3] I had read the submissions before coming into court and had apprehended that I would be dealing with the preliminary application for leave, which of course is essentially a procedural matter, together with the remaining substantive application as to whether or not the defendants should be removed. However, at a reasonably early stage it became apparent that Mr Jenkin, acting for three of the step-daughters of Mr Billingham, and who are three of the six beneficiaries, had come to Court on the basis that the only matter to be determined was the application for leave. I expressed surprise that that was the case, particularly as the matter had been set down for 2 ½ hrs. In addition, there is a substantial body of evidence before the Court in affidavits bearing on the substantive application.

[4] However, following further and reasonably extended discussions, and submissions, and after reviewing relevant Court minutes and directions and, in particular, a joint memorandum of counsel dated 2 December 2013, I concluded that it would be unfair to the step-daughters to proceed today to determine the substantive issue as to whether the defendants should be removed. This is not only because Mr Jenkin had prepared for the matter on the basis that the only issue would be the application for leave. The additional considerations are that step-daughters wish to

cross-examine some…

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 Billingham v Wilson

Details

AGLC: Billingham v Wilson [2014] NZHC 453
Case: [2014] NZHC 453
Decision Date: 12 March 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Jan Maree Billingham sought leave to proceed by way of originating application against Richard George Wilson and Marcus Andrew Hugh Rudkin, who were the executors of the estate of Ronald Alfred Billingham, deceased. The plaintiff sought two main orders: a direction for the executors to formally prove the deceased's will and an order for the executors to be removed and replaced with an administrator proposed by the Public Trustee. The plaintiff argued that the executors faced conflicts of interest due to opposing interests between the plaintiff and her brothers, as beneficiaries, and the deceased's step-daughters. The defendants, who were also partners in a law firm, argued that the plaintiff should have commenced proceedings in the usual manner, with a notice of proceedings and a statement of claim.

The court granted leave for the plaintiff to proceed by way of originating application and reserved leave for any party to apply for leave to cross-examine deponents and to apply for an order for discovery. The court considered the fairness to the step-daughters, who wished to cross-examine some of the deponents and seek discovery, and the potential costs to the estate and the parties. The court scheduled a one-day hearing for the plaintiff's substantive originating application to remove the defendants and appoint an administrator, to be held on the first available date after 25 April 2014. The defendants were granted leave not to participate in the further hearing unless they considered it necessary to do so, and if either the plaintiff or the step-daughters intended to seek an order against the defendants, other than the order for their removal, notice was to be given to the defendants. Costs were reserved, and the plaintiff's application for the defendants to pay costs remained pending a decision on whether the defendants were to be removed.

Orders