Coburn v McDonald - [2023] NZHC 300

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-752

[2023] NZHC 300

IN THE MATTER of an application under s 21 of the Administration Act 1969 made under Part 18 of the High Court Rules 2016

BETWEEN

GRANT IAN COBURN AND LOUISE JACQUELINE COBURN

Plaintiffs

AND

STEPHEN JOHN MCDONALD

Defendant

Hearing: 1 December 2022

Appearances:

D R Bigio KC for the Plaintiffs SWM Piggin for the Defendant

Judgment:

24 February 2023

JUDGMENT OF HARVEY J

This judgment was delivered by me on 24 February 2023 at 4 pm pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

Counsel: D Bigio KC, Auckland
Stephen Piggin Barrister, Auckland

Solicitors: TGT Legal, Auckland
McDonald Law, Auckland

COBURN v MCDONALD [2023] NZHC 300 [24 February 2023]

Introduction

[1] Ian Bowie Coburn died on 8 September 2017. He was survived by his three children, Grant, Louise and Malcolm Coburn and several grandchildren. A grant of probate was issued on 20 November 2017. The defendant, Stephen McDonald, and Doreen Dundas, the deceased’s sister, were appointed executors. Mr McDonald was the deceased’s long-time solicitor.

[2] The plaintiffs, Grant and Louise Coburn, now seek the removal of Mr McDonald as executor of their father’s estate and the appointment of Ms Alison Gilbert of Brookfields Lawyers as his replacement under s 21 of the Administration Act 1969 (the Act).

[3] The plaintiffs argue that the lengthy and inexplicable delays in finalising the estate are unjustified and that this requires Mr McDonald’s removal and replacement. Moreover, they say that delays have been preventing the final distribution to the Gramalou Family Trust (the Trust), of which they are trustees alongside their brother Malcolm.

[4] Mr McDonald was served with the proceedings on 5 July 2022 but has not filed an appearance or a statement of defence. The plaintiffs also say that Mrs Dundas has been served along with other interested persons, namely beneficiaries with specific entitlements in the estate and Malcolm as the third trustee of the Trust – the residuary beneficiary of the estate. The plaintiffs contend that none of the interested persons have elected to participate in the proceedings. At the plaintiffs’ request, the matter was then listed for formal proof by Powell J on 25 October 2022.

[5] The day before the hearing before me, counsel for Mr McDonald filed an interlocutory application for leave to extend the time for filing a statement of defence, and for an adjournment of the proceedings. The application was opposed by the plaintiffs. At the hearing held on 1 December 2022, Mr McDonald’s application was dismissed. This judgment provides reasons for the dismissal. It then deals with the issue of whether the plaintiffs’ application for formal proof should be granted.

Background

[6] The following is taken from the plaintiffs’ evidence and submissions. After the deceased’s passing, disputes arose between his children concerning the estate and the Trust. Those issues were resolved following mediation in September 2019. The terms…

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 Coburn v McDonald

Details

AGLC: Coburn v McDonald [2023] NZHC 300
Case: [2023] NZHC 300
Decision Date: 24 February 2023

CaseChat Overview and Summary

In Coburn v McDonald, the plaintiffs, Grant and Louise Coburn, sought the removal of Stephen McDonald as executor of their father’s estate, Ian Coburn, and his replacement under s 21 of the Administration Act 1969. The plaintiffs claimed that the lengthy and inexplicable delays in finalising the estate required Mr McDonald’s removal. They also argued that the delays were preventing the final distribution to the Gramalou Family Trust, of which they are trustees. The defendant, Mr McDonald, was served with the proceedings but did not file an appearance or statement of defence. He applied for an extension of time to file a statement of defence and for an adjournment of the proceedings, which was opposed by the plaintiffs. The court dismissed Mr McDonald’s interlocutory application and granted the plaintiffs’ application for formal proof, removing Mr McDonald as executor and appointing Alison Gilbert as his replacement.

The court first addressed the form of the plaintiffs’ application. The relief claimed was statutory, being an application to remove and replace an executor under s 21 of the Act. However, the court held that Part 18 of the High Court Rules 2016 could apply to the proceeding as it was a question that arose in the administration of an estate. The court then dismissed Mr McDonald’s application for an extension of time, finding that he had ample time to file a defence but had taken no steps until very recently. The explanation he provided was not convincing.

Regarding the plaintiffs’ application for formal proof, the court found that the removal and replacement of Mr McDonald was in the best interests of the beneficiaries. The court held that the delay in finalising the estate was unreasonable and inexplicable and that there appeared to be growing hostility between Mr McDonald and the plaintiffs. The court was unconvinced that they would be able to expeditiously finalise any outstanding issues without prejudice to the beneficiaries’ interests. The court concluded that it was in the best interests of the beneficiaries that Mr McDonald be replaced so that the estate could be completed, and the deceased’s children and their families could move on with their lives without the proceeding hanging over them.

In conclusion, the court dismissed Stephen McDonald’s application for an extension of time for the filing of a statement of defence and an adjournment. The court granted the application of Grant Coburn and Louise Coburn for the removal of Stephen McDonald as executor for the estate of Ian Coburn and the appointment of Alison Gilbert, a solicitor of Auckland, as replacement executor.

Orders