Cartwright v Joseph - [2021] NZHC 145

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2016-488-000058

[2021] NZHC 145

IN THE MATTER of the Family Protection Act 1955

AND

IN THE MATTER

of the estate of John Boyd Harrison

BETWEEN

CATHERINE DAILE CARTWRIGHT and SARAH BEVERLEY HARRISON

Plaintiffs

AND

NITA WAIRANGI JOSEPH, BARRIE AGAR, BRETT HOGAN and TREVOR

DRAFFIN as trustees and executors of the estate of John Boyd Harrison

Defendants

Hearing: (On the papers)

Counsel:

Plaintiffs in Person

Johanna Robertson for Nita Joseph Juliet Golightly for the Executors

Judgment:

12 February 2021

JUDGMENT OF MOORE J

[Re application to vary orders]

This judgment was delivered by me on 12 February 2021 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2021] NZHC 145 [12 February 2021]

Introduction and background

[1] On 11 September 2018 I released my judgment in which I determined that John Boyd Harrison (“Tim”) had breached his moral duty to his two daughters, the plaintiffs.1 I determined that they were entitled to adequate provision for proper maintenance and support in the order of 20 per cent of the value of the estate, divided equally between them. I left open the question of how that award should be met by the estate and invited further submissions on that discrete point.

[2] On 6 November 2018, after receiving further submissions, I made orders as to how the plaintiffs’ award was to be met by the estate.2 I reserved leave to the parties to apply for such other orders or directions as might be necessary in the event any subdivision and/or sale was impeded for reasons outside the control of the executors, or if unforeseen costs arise.3 This was because certain real property held by the estate needed to subdivided and sold to meet the plaintiffs’ award.

[3] That judgment was followed by a memorandum filed by the plaintiffs seeking further orders in respect of the award. They submitted that the proposed subdivision would be costly and more complex than had been expected. It was not practicable and, they submitted, the award should be satisfied in an alternative way. They suggested they be granted a 10 per cent interest in each block of land comprised of block 610 and 609, secured by a caveat over the titles to those sections. They considered that this would give the executors control as to how the estate would be disposed of. Alternatively, they proposed cash awards of $380,000 each (representing 10 per cent of the lowest valuation of the estate provided by the executors).

[4] The plaintiffs’ proposal was opposed by the executors and Tim’s long-term partner, Nita. Their opposition was founded on various grounds. Relevantly, one was that by seeking orders of this sort, the plaintiffs were attempting to challenge the outcome of my previous judgments when, in fact, the appropriate course would be by way of appeal.

1 Cartwright v Joseph [2018] NZHC 2383

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 Cartwright v Joseph

Details

AGLC: Cartwright v Joseph [2021] NZHC 145
Case: [2021] NZHC 145
Decision Date: 12 February 2021

CaseChat Overview and Summary

The High Court of New Zealand considered an application by the plaintiffs, Catherine Daile Cartwright and Sarah Beverley Harrison, seeking further orders in respect of their entitlement to a portion of the estate of John Boyd Harrison. The plaintiffs sought orders to ensure their award was met in a way that would satisfy the court's judgment and ensure an equitable outcome for all parties. The defendants opposed the application on various grounds, including that the plaintiffs were attempting to challenge the outcome of the court's previous judgments, which should be done by way of appeal. The court noted that the plaintiffs' application was procedurally flawed and did not fit within the grant of leave to apply for further orders. Furthermore, the plaintiffs' complaint that the executors were in breach of their fiduciary duties did not arise from these proceedings but rather in a claim against the trustees for breach of duty. The court concluded that it was functus officio and declined the plaintiffs' application.

The court's decision was based on several reasons. Firstly, the plaintiffs' application was procedurally flawed, and the claims were not presented in an acceptable evidential form. Secondly, the plaintiffs' application was not authorised by the limited grant of leave the court had reserved for the parties in its previous decision. Thirdly, the essence of the plaintiffs' complaint was that the executors were not acting in the best interests of the beneficiaries, particularly the plaintiffs, and were thus in breach of their duties as executors. Any remedy for alleged breaches of duty by the executors and trustees did not arise from these proceedings but rather in a claim against the trustees for breach of duty. Lastly, the court was satisfied that it was functus officio for reasons that followed. The court considered whether it might have the power to vary the orders under section 12 of the Family Protection Act 1955, but it was satisfied that it could not call in aide for the benefit of the plaintiffs. Therefore, the court declined the plaintiffs' application.

Orders