Billingham v Wilson
[2014] NZHC 453
•12 March 2014
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, AucklandMr 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 of the deponents and discovery of documents is sought. One of the essential points Mr Jenkin made on the question of leave is that, in his submission, the proper procedure was to commence with a notice of proceeding and a statement of claim, with this meaning that the step-daughters would be entitled to cross-examine witnesses and to discovery in the usual way.
[5] Against these considerations is the cost to the estate and the cost to the parties. The estate is, on the face of it, modest. A substantial part of what the plaintiff (and her two brothers) seeks to achieve is to bring a property into the estate. It may very well be that the cost of litigation may be significant in relation to the increase in value of the estate assuming the claims sought to be pursued are successful.
[6] I do record that Mr Fuscic did make an oral application that the substantive originating application should be determined today, as well as the application for leave and he advanced good submissions in support of that. However, in the end I came back to the fundamental question of fairness, to which I have referred, to conclude, with one other consideration, that I should not proceed to determine the substantive issue of removal of trustees. The additional consideration is that the application for leave can be disposed of now and in a way which enables the substantive issue to be timetabled to a hearing.
[7] Mr Jenkin indicated that, if his clients were granted leave to cross-examine a number of deponents, and if there is an order for discovery as sought by the step- daughters, then the opposition to leave to proceed by originating application would not be pursued. I do not consider it is appropriate in advance to grant leave to cross- examine or to make an order that the step-daughters are entitled as of right to discovery. In these circumstances it was not possible to grant leave to proceed by originating application by consent, or at least without opposition. However, having regard to the matters that I discussed with counsel at reasonable length and to which I have adverted up to this point, and in particular questions of cost, I am satisfied that formal orders should be made with provision for leave in respect of cross- examination and discovery.
[8] Accordingly, leave is granted to the plaintiff to proceed by way of originating application. Leave is also reserved to any party, including the step-daughters who are parties, as persons directed to be served, to apply for leave to cross-examine deponents and to apply for an order for discovery.
[9] It is appropriate to record, in respect of the question of cross-examination, at least the essence of what has been discussed with counsel. If there is an application for leave to cross-examine that, of course, will be a matter to be determined by the Judge to whom it is referred. However, it did appear to me, on a preliminary basis, that the cross-examination that the step-daughters are wishing to undertake, is not cross-examination directed to the central issues on the application to remove the defendants as executors and trustees. It is cross-examination to the merit of contentions of the plaintiff and her brothers relating to Mr Billingham’s capacity to enter into a relationship property agreement, and his capacity in respect of other matters. These are contentions underpinning the claim the plaintiff wants the executors to bring in relation to the former family home of Mr Billingham and his late wife, Mrs Patricia Billingham.
[10] The plaintiff seeks an order for removal of the defendants because the plaintiff contends that the defendants will, amongst other things, face a conflict in respect of matters that the plaintiff and her brothers wish to pursue. The conflict is a conflict between the plaintiff and her two brothers on the one hand as three of the beneficiaries, and the three step-daughters as the other three beneficiaries. The positions of the two groups are diametrically opposed. The plaintiff and her brothers want the administrator of the estate, whoever it might be, to take appropriate proceedings to seek to bring a share of the former matrimonial home back into the estate. The step-daughters are opposed to that course as I understand it. The second conflict arises from contentions of the plaintiff about Mr Wilson’s actions as solicitor to Mr Billingham during Mr Billingham’s life-time and, in particular, advice that may or may not have been given by Mr Wilson relating to the relationship property agreement and other matters now said to affect the value of the estate adversely.
[11] The ultimate merit of these contentions by the plaintiff does not seem to me to be the question to be determined by the Court on the application for the removal
of the defendants. This appears to be made clear in numbers of decisions of this
Court, including the decisions of Coote v Warren1 and Farnsworth v Farnsworth.2
[12] On the question of discovery I did apprehend that this is a matter that might be resolved by agreement. Mr Fuscic advised that the plaintiff may in fact be wanting some documents from Jackson Russell, being the firm in which the defendants are partners. Mr Hawk indicated that there is unlikely to be difficulty in this regard subject only to questions of legal professional privilege. The leave to apply for an order for discovery is granted, to the extent that leave is required, with this leave being available to all parties, but as I say this matter hopefully will be resolved by agreement.
[13] There remains timetabling for a hearing for the plaintiff’s substantive originating application application to remove the defendants and appoint an administrator. Following further discussions at this point in the dictation of this judgment, Mr Fuscic and Mr Jenkin in essence accepted that it is desirable to avoid further procedural difficulties. The only difference between them was whether a fixture should be allocated for a half day or a day. Mr Jenkin suggested a day because leave may be granted for cross-examination. To an extent there is a chicken and egg issue here because leave may not be granted. However, to seek to expedite matters as much as can be achieved, I direct that a fixture of one day be allocated on the first available date after 25 April 2014. This date is chosen on the basis that it should allow more than enough time for any interlocutory applications to be made and in particular any application the step-daughters may wish to make for leave to cross-examine. There are also the discovery issues earlier noted if they cannot be resolved by sensible arrangements.
[14] Mr Fuscic and Mr Jenkin confirmed that neither party wishes to file any further affidavits.
[15] The standard directions will apply in relation to the filing of submissions and common bundle of documents before the hearing, although it does appear that most
1 Coote v Warren [2013] NZHC 3210, and in particular at [10]-[18].
2 Farnsworth v Farnsworth HC Auckland M1767/97, 12 January 1999.
of what is required is already before the Court. Again, in the interests of avoiding unnecessary costs, the standard directions in relation to a common bundle of documents and submissions may be modified having regard to what has already been filed to the extent that that is appropriate.
[16] Mr Hawk, at the commencement of the proceeding, enquired whether he might be excused. Because some further information was provided in Mr Fuscic’s submissions in reply which bears on the position of the defendants, or perhaps the position of Jackson Russell as a firm, Mr Hawk remained. However, the position of the defendants now is that they will abide the decision of the Court. In these circumstances leave is granted to the defendants not to participate in the further hearing unless they consider it is necessary to do so. In these circumstances the defendants therefore will not be filing any further documents in this proceeding unless directed by the Court.
[17] Mr Hawk quite properly raised a concern in relation to the possibility of orders being made against the defendants other than the substantive order sought by the plaintiff for their removal. This includes the possibility of an order for costs against the defendants, but it could extend to other matters. To accommodate that there is a direction that if either the plaintiff or the step-daughters intend to seek an order against the defendants, other than the order for their removal, notice is to be given to the defendants.
[18] Costs are reserved. There is an existing application by the plaintiff that the defendants pay costs. That application remains, but Mr Fuscic accepted that determination of the application for costs against the defendants should be left for consideration following a decision on the question as to whether the defendants are
to be removed.
Woodhouse J
0