Black v McElhinney

[2023] NZHC 521

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-5

[2023] NZHC 521

BETWEEN

DAVID CHARLES BLACK and GREGORY PETER McELHINNEY
Applicants

AND

BRENDAN JOHN McELHINNEY

Respondent

Hearing:	On the papers
Appearances:	R Thomas for Applicants
Judgment:	15 March 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 15 March 2023 at 4.50 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BLACK and v McELHINNEY [2023] NZHC 521 [15 March 2023]

[1]                 This is an interlocutory application made without notice for a range of orders to be made pending the outcome of the substantive application to remove the respondent as one of the executors and trustees of the estate of the late Catharene Erene McElhinney (the deceased).

[2]The orders sought are:

(a)An order directing the respondent vacate the estate’s residential property located 17 Brydone Street, Edendale (“property”) immediately.

(b)An order preventing the respondent carrying out any work of any nature on the property.

(c)An order preventing the respondent causing damage to the property in any way.

(d)An order preventing the respondent removing any chattels or personal belongings of the deceased from the property.

(e)An order preventing the respondent felling any trees on the property and on the adjacent vacant section, which is also part of the estate.

(f)Any other orders the court deems fit in the circumstances of this matter.

[3]The basis on which the orders sought include:

(a)while the deceased was alive the respondent, without consultation, withdrew more than $500,000 from the deceased’s bank account and invested it in silver bullion. Despite several requests by Mr Black, the respondent has not provided information on the purchase of the bullion.

(b)The respondent has, without the authority of the other trustees and executors of the estate of the deceased has moved into the property.

(c)On a visit to the property Mr Black noticed that furniture had been moved and work was being done on the property.

(d)On the next visit to the property he found the locks to the property had been changed.

(e)Mr Black had to alter the insurance policy because the original policy did not provide for occupation of the property.

(f)The respondent has refused to leave the property believing he has the right to reside there and the other trustees are not able to carry out much needed repair works for the property.

[4]                 The applicants are concerned that it is not safe for anyone to live in the property because its poor state of repair.

[5]                 I accept that the applicants’ affidavit evidence gives rise to serious concerns regarding the respondent’s conduct. However, I am not prepared to make all the orders sought without first hearing from the respondent. I am only prepared to make orders which preserve the position in the interim until the respondent has an opportunity to respond. Accordingly, I make the following orders:

(a)the respondent, Brendon John McElhinney, is not to carry out work of any nature on the property at 17 Brydone Street, Edendale (the property) unless it is maintenance work which has been agreed with the applicants;

(b)the respondent is not to damage or alter the property in any way;

(c)the respondent is not to remove any chattels or personal belongings of the deceased from the property;

(d)the respondent is not to fell any trees on the property, including on the adjacent vacant section which is also part of the estate; and

(e)the respondent is not to access or use any other estate property without the consent of the applicants.

[6]I make the following directions:

(a)this application is to be  listed  for  a  telephone  conference  within  10 working days;

(b)in the interim, the applicants are to serve the application on the respondent, as soon as possible; and

(c)the respondent must file any notice of opposition and supporting affidavit no less than three working days before the telephone conference.

[7]                 The orders I have made above will remain on foot until the telephone conference where they will be reviewed. If the application is opposed, it is to be scheduled for an urgent hearing.

[8]                 A copy of this decision is to be served on the respondent, along with the application.

Solicitors:

R T Law, Dunedin