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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…
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- Case
- [2013] NZHC 2086
- Decision Date
CaseChat Overview and Summary
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.
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