Bupa Care Services NZ Ltd v Gillibrand - [2013] NZHC 2086

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IN THE HIGH COURT OF NEW ZEALAND WHANGREI REGISTRY

CIV 2012-488-557 [2013] NZHC 2086

IN THE MATTER OF the Administration Act 1969

BETWEEN BUPA CARE SERVICES NZ LTD Applicant

ANDCHRISTIAN JOHN GILLIBRAND Respondent

CIV 2013-488-361

BETWEEN BUPA CARE SERVICES NZ LTD Plaintiff

ANDCHRISTIAN JOHN GILLIBRAND in his capacity as the Exectuor of the Estate of the Late Gordon John Gillibrand Defendant

Hearing: 14 August 2013

Counsel: A N Isac and R M Vokes for Bupa Care Services NZ Ltd
A Holgate for Mr Gillibrand

Judgment: 16 August 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 16 August 2013 at 10.00am pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Gibson Sheat, Wellington Swanepoel Law, Whangarei Counsel:
A Holgate, Whangarei

BUPA CARE SERVICES NZ LTD v GILLIBRAND [2013] NZHC 2086 [16 August 2013]

Background

[1] Bupa Care Services NZ Ltd (Bupa) operates the Kauri Coast Rest Home and Hospital in Dargaville. Between May 2003 and April 2009, the late Mr Gordon Gillibrand was resident in that facility. Mr Gillibrand died there on 15 April 2011.

[2] At the time of the late Mr Gillibrand’s death, the sum of $51,759 was owing to Bupa. There is no dispute that that amount has been calculated correctly in terms of the contractual arrangements in place. Nevertheless, the executor of the deceased’s estate, Mr Christian Gillibrand (his son) has denied liability for the debt and puts forward an unliquidated equitable set-off (that may, or may not, also become a counterclaim) on the basis that (among other things) Bupa’s treatment of his father was inhumane, and/or “wrongly caused Mr Gillibrand senior’s death”. No sufficient evidential foundation has yet been laid to support those serious allegations.

[3] The estate has only one asset. It is a debt owed by Mr Christian Gillibrand, in his capacity as a trustee of the Chris and Mary Gillibrand Family Trust (the Trust). That Trust had acquired a farm property, at Hoanga and Hillstone Roads in Dargaville, as part of a transaction whereby Mr Gillibrand senior loaned the money ($505,000) to enable the purchase to be effected. As a result of the arrangement, the (then) trustees of the Trust were liable to repay the debt, on demand.

[4] There are two proceedings before me:

(a) Bupa seeks an order removing Mr Christian Gillibrand as executor of the estate, on grounds of conflict of interest and hostility.1

(b)Bupa sues to recover the debt from the estate.2 Judgment is sought in the sum of $51,759.57, together with contractual interest at the rate of
10% per annum on unpaid daily care fees from 4 June 2013 to the date of judgment.

It is only the first of those that requires determination, at this stage.

1 CIV-2012-488-557.
2 CIV-2013-488-361.

[5] There are incidental applications relating to admissibility of evidence and discovery of documents, as well as an application by Mr Gillibrand to stay the removal proceeding…

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.

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Details

Case: [2013] NZHC 2086
Decision Date: 16 August 2013

CaseChat Overview and Summary

Bupa Care Services NZ Ltd sought the removal of Christian John Gillibrand as the executor of the estate of his deceased father, Gordon John Gillibrand, on grounds of conflict of interest and hostility. Bupa also sought to recover the sum of $51,759, owing from the estate, together with contractual interest. The case before the court involved determining whether there were sufficient grounds to remove Christian Gillibrand as executor and, if so, who should replace him. The legal principles guiding the court's decision were derived from Section 21 of the Administration Act 1969, which allows the court to remove an executor if it becomes expedient to do so. The court considered the conflict of interest between Christian's duty as an executor and his personal interests, as well as the allegations of hostility towards Bupa.

The court found that Christian had a conflict of interest, influenced by his personal beliefs about Bupa's care for his father and his financial interests as the sole beneficiary of the estate. The court concluded that an independent executor was required to properly administer the estate and ensure that valid debts were paid before distributions to beneficiaries. After considering potential replacements, the court appointed Stuart McDonald Henderson as the new executor. The court also dismissed ancillary applications related to evidence admissibility, discovery of documents, and a stay on the removal proceeding. Costs were reserved for a later determination.

The court's decision resulted in the removal of Christian Gillibrand as executor, the appointment of Stuart McDonald Henderson as his replacement, and the dismissal of ancillary applications. The matter concerning the debt recovery was set for a case management conference to allow the new executor time to investigate the claims. Costs were reserved for a later hearing.

Orders