Burgess v Monk - [2017] NZHC 612

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2017-463-0008 [2017] NZHC 612

IN THE MATTER
of the Estates of Christian Theodore Emil

Burgess and Mary Alice Burgess

BETWEEN

WARWICK JAMES BURGESS Applicant

AND

PHILIP CHARLES MONK First Respondent

THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Second Respondent

DAVID TROUNSON Third Respondent

OʼSULLIVAN CLEMENS

Fourth Respondent

Hearing: 8 March 2017

Appearances:

D G Chesterman for Applicant
R J Latton for First and Second Respondent
J N Briscoe for Party Directed to be Served

Judgment:

30 March 2017

JUDGMENT OF PETERS J

This judgment was delivered by me on 30 March 2017 at 2.15pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors: Bell & Graham, Matamata
Tompkins Wake, Rotorua

Counsel: D G Chesterman, Auckland
R J Latton, Auckland

BURGESS v MONK [2017] NZHC 612 [30 March 2017]

Introduction

[1] Mr Burgess, the applicant, seeks orders for the provision of documents and that the first and second respondents make an interim distribution to him of funds they hold as executors of the estates of his parents, Christian and Mary Burgess (“estates”). Christian Burgess died in 1980 and Mary Burgess in 2007.

[2] Mr Burgess seeks these orders by way of originating application dated 19

December 2016 (“application”). Mr Burgess requires leave to proceed by way of such an application. I have reservations about whether Mr Burgess should have proceeded in this manner but I shall grant leave as there is no objection to my doing so and the application for a distribution fails for a more fundamental reason, being a lack of jurisdiction.

[3] The first and second respondents (“Mr Monk” and “NZGT”, together “the executors”) are the present executors and trustees of the estates. For reasons it is unnecessary to address, the estate of Christian Burgess has not yet been wound up. Nothing turns on this however. Christian Burgess left his estate to Mary Burgess and so the funds affected by this application may be treated as held by the executors for the estate of Mary Burgess.

[4] The third and fourth respondents have not participated in the application. The third respondent is the executor of the estate of Mr Anthony Richard Western. Mr Western was an executor and trustee of the estate of Mary Burgess until December 2009, when NZGT was appointed in his place. The fourth respondents are the solicitors acting for the executors, and hold all funds in their trust account. They were not required to appear at the hearing before me as they abide the decision of the Court.

[5] Mr Burgess served his application on the executor of the estate of his late brother, Hilton Burgess (“Hilton Burgess Estate”). Hilton Burgess died in July 2010. The executor of the Hilton Burgess Estate is the (estranged) wife/widow of Hilton Burges, Mrs J E Burgess (“Mrs Burgess”). Mrs Burgess and the children of the marriage are the beneficiaries of that estate.

[6] On or about 20 February 2017, Mrs Burgess filed a notice that…

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 Burgess v Monk

Details

AGLC: Burgess v Monk [2017] NZHC 612
Case: [2017] NZHC 612
Decision Date: 30 March 2017

CaseChat Overview and Summary

In the matter of the estates of Christian Theodore Emil Burgess and Mary Alice Burgess, Warwick James Burgess sought orders for the provision of documents and for an interim distribution of funds held by the executors of his parents' estates. The High Court of New Zealand, Rotorua Registry, considered the applicant's application for leave to proceed by way of an originating application and the jurisdiction to order an interim distribution. The applicant required leave to proceed, which the court granted despite reservations, as there was no objection and the application for distribution lacked jurisdiction. The executors opposed the application, and the applicant's estranged sister-in-law filed a notice combining opposition to the applicant's application and an interlocutory application seeking an order for distribution. The court found the sister-in-law's notice deficient and declined to entertain it.

The court considered the provisions of the Trustee Act 1956 and whether they applied to the case. The applicant argued that the provisions allowed the court to order an interim distribution, but the court found no such jurisdiction. The court also noted that an executor could make an interim distribution if they wished. However, the executors had concerns about the applicant's proceedings against them and did not make a distribution. With those concerns resolved, the applicant no longer required the court's order for distribution. The applicant sought updated account statements and source documents relating to the estate's account since 1980. The court declined to order these documents as the executors had already provided all relevant documents and would continue to do so. The court made no order as to costs.

Orders