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…

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 Brown v Brown

Details

AGLC: Brown v Brown [2023] NZHC 1180
Case: [2023] NZHC 1180
Decision Date: 17 May 2023

CaseChat Overview and Summary

The case of Brown v Brown involves an application to the High Court of New Zealand by four siblings, Steven Francis Brown, Cheryl Moana Maria Allan, Errol Ambrose Brown, and Matthew John Brown, seeking the removal of their brother, William Moses Brown, as the executor and trustee of their late mother's estate. William is the first respondent in the case, while their sister Rebecca Takimoana is the second respondent. The dispute centers around the administration of their late mother's estate, specifically the inability of the siblings to agree on the sale or retention of the estate's primary asset, a residential property. The applicants claim that William has failed to properly administer the estate, is not acting neutrally, and is not acting in the best interests of all the beneficiaries.

The legal issues the court was required to decide in this case were whether the applicants could commence proceedings by originating application under the Administration Act 1969 and whether it was in the interests of justice for the application for leave to be made without notice. The court considered the nature of the proceeding, which appeared to be straightforward and not requiring detailed pleadings or interlocutory orders for its fair resolution. The court also considered the potential for undue delay if the applicants were required to proceed on notice and the interests of justice in expediting the determination of the application.

The court found that it was in the interests of justice for the proceedings to be commenced by originating application to permit their just, speedy, and inexpensive determination. The court also found that it was appropriate for the application for leave to be made without notice, as it would cause undue delay to the applicants, the application related to a routine matter, and the interests of justice required the application for leave to be determined without serving notice of the application. The court granted leave for the proceedings to be dealt with by way of an originating application under Part 19 of the High Court Rules 2016.

The court's final orders were that the applicants were to promptly serve copies of the documents referred to in the judgment, together with a copy of the judgment, on the respondents. Once service had been effected, the applicants were to file an affidavit of service, and the matter would then be referred to the Duty Judge for further directions.

Orders