Brown v Brown

[2023] NZHC 1180

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000788

[2023] NZHC 1180

UNDER

the Administration Act 1969

IN THE MATTER

of the Estate of KATHLEEN NORMA BROWN

BETWEEN

STEVEN FRANCIS BROWN, CHERYL MOANA MARIA ALLAN, ERROL AMBROSE BROWN and MATTHEW JOHN BROWN

Applicants

AND

WILLIAM MOSES BROWN

First Respondent

REBECCA TAKIMOANA

Second Respondent

Hearing:	On the papers
Counsel:	C Light for the Applicants
Judgment:	17 May 2023

JUDGMENT OF GORDON J

[Leave to proceed under Part 19 High Court Rules 2016]

This judgment was delivered by me on 17 May 2023 at 9 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Shine Lawyers NZ Ltd, Auckland

BROWN v BROWN [2023] NZHC 1180 [17 May 2023]

[1]    The applicants filed the following documents under the Administration Act 1969:

(a)an interlocutory application without notice for leave to commence proceedings by originating application dated 17 April 2023 and filed on 1 May 2023;

(b)an affidavit of Steven Francis Brown (Steven) in support of the substantive application sworn 13 April 2023 and filed on 1 May 2023;

(c)the proposed originating application dated 17 April 2023 and filed on 15 May 2023; and

(d)a memorandum of counsel for the applicants dated 17 April 2023 and filed on 15 May 2023.

[2]The above documents have been referred to me in my capacity as Duty Judge.

[3]    The proposed originating application seeks the removal of the executor and trustee of a will, the appointment of a replacement executor and trustee and further related relief.

[4]The applicants and respondents are all siblings.

[5]    The first respondent, William Moses Brown (William), is the executor and trustee of the estate of their late mother, Kathleen Norma Brown (respectively the Estate and Kathleen).

[6]The second respondent is the applicants’ sister, Rebecca Takimoana (Rebecca).

[7]    Probate of Kathleen’s will was granted on 10 March 2021. The administration of the Estate has still not been finalised.

[8]    The residue of the Estate was left by Kathleen to her eight children. The children (the beneficiaries) have been unable to agree on the sale or retention by one

or more of the beneficiaries of the Estate’s major asset, a residential property (the Property).

[9]    Steven explains in his affidavit that there have been a number of meetings to try and agree on the distribution of the Estate. Those meetings have been unsuccessful. He also refers to and annexes legal correspondence, which has similarly not led to a resolution. Steven says that two of the applicants are now seriously ill and there is a degree of urgency for the distribution to be resolved.

[10]   The position of the applicants is that there is complete uncertainty as to when, if ever, administration of the Estate will be completed and the remaining funds distributed. The applicants say that William has failed to take the required steps to properly administer the Estate, is not acting neutrally and is not acting in the best interests of all the beneficiaries.

Discussion

[11]   Rule 19.2 of the High Court Rules sets out the enactments pursuant to which applications made to the High Court must be made by originating application. The Administration Act is not one of the enactments listed in that rule. However, the Court may permit proceedings to be commenced by originating application if it is in the interests of justice to do so.1 The Court’s permission may be sought without notice.2

[12]   Relevant considerations for the granting of leave were considered by Asher J in Hong Kong and Shanghai Banking Corporation Ltd v Erceg.3 Those considerations include where the type of proceeding is a straightforward application, not requiring detailed pleadings or interlocutory orders for its fair resolution. Such a proceeding “tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined.”4 That would appear to be the case here (except perhaps for an order seeking vacant possession, if it applies).5 The

1      High Court Rules 2016, r 19.5(1).

2      High Court Rules, r 19.5(2).

3      Hong Kong and Shanghai Banking Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [22]– [26].

4 At [25].

5      It is thought that Rebecca may be living in the Property.

issues seem to be clearly defined and confined. Further, there are essentially only three parties.

[13]   I accept that in this case it is in the interests of justice that the proceedings be commenced by originating application in order to permit their just, speedy and inexpensive determination.6

[14]   I accept that it is appropriate that the application for leave be made without notice in this case because requiring the applicants to proceed on notice would cause undue delay to the applicants; the application relates to a routine matter, and the interests of justice require the application for leave to be determined without serving notice of the application. Additionally, r 19.5(2) provides that the Court’s leave may be sought without notice.

[15]   I conclude that this is an appropriate case in which to grant leave for the proceedings to be dealt with by way of an originating application under Part 19 of the High Court Rules 2016. I make a direction accordingly.

[16]I also make the following directions:

(a)the applicants are to promptly serve copies of the documents referred to in [1] above, together with a copy of this judgment, on the respondents;

(b)once service has been effected, the applicants are to file an affidavit(s) of service; and

(c)the matter will then be referred to the Duty Judge for further directions.

Gordon J

6      Solar Bright Ltd v Martin [2019] NZHC 300 at [17]–[18]. Other cases involving applications for removal of an executor and trustee where leave has been granted to bring the proceedings by way of originating application include French v Hayward [2019] NZHC 2687; Bean v Bean [2020] NZHC 171 and Rosinger v Sachs[2021] NZHC 3022.