Connolly v Eckhout - [2022] NZHC 293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-463-18

[2022] NZHC 293

UNDER The Family Protection Act 1955

IN THE MATTER OF

The estate of JAN DANIEL ECKHOUT

BETWEEN

MICHELLE LEE CONNOLLY

Plaintiff

AND

KAREN ELIZABETH ECKHOUT

Defendant

Hearing: 9 February 2022 (by VMR)

Appearances:

S R G Judd for the plaintiff

No appearance for the defendant

Judgment:

25 February 2022

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 25 February 2022 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

CONNOLLY v ECKHOUT [2022] NZHC 293 [25 February 2022]

Introduction

[1] Ms Connolly successfully sued the administrator of her deceased father’s estate, Ms Eckhout, under s 4 of the Family Protection Act 1955. The Court awarded her $449,741.57.

[2]Ms Eckhout has failed to pay the judgment debt. Ms Connolly seeks:

(a)an order for the arrest of Ms Eckhout;

(b)sanctions against Ms Eckhout; and

(c)costs on an indemnity basis.

Background

[3] Ms Connolly is the daughter of the deceased Mr Jan Eckhout. Mr Eckhout passed away in October 2017.

[4] Ms Eckhout is Mr Eckhout’s widow. She was appointed the administrator of Mr Eckhout’s estate on 3 October 2018. She is the primary beneficiary under his will.

[5] Ms Connolly was not a beneficiary under Mr Eckhout’s will. In 2019, she brought a proceeding under the maintenance provision of the Family Protection Act against Ms Eckhout, as administrator.

[6] In December 2020, Ms Eckhout travelled to Perth to care for her elderly parents. She has not returned.

[7] On 12 February 2021, Ms Eckhout made a statutory declaration that the value of Mr Eckhout’s estate was $1,560,000. Soon after making that declaration, Ms Eckhout’s solicitor and counsel were granted leave to withdraw. At that point a substantive hearing was scheduled to commence on 27 April 2021. Ms Connolly became concerned about the state and whereabouts of Mr Eckhout’s estate. She applied for a preservation order under r 7.55(3) of the High Court Rules 2016 that Ms Eckhout pay into Court the amount she had declared was the value of the estate.

[8] Fitzgerald J, in a judgment dated 1 April 2021, declined to make a preservation order.1 Her Honour said that the difficulty in making such an order was that the Court was not aware of the nature of the estate’s assets, or where and by whom they were held (Ms Eckhout’s declaration not having provided that information). But her Honour said that Ms Eckhout had a duty as administrator to place such information before the Court. Fitzgerald J therefore ordered Ms Eckhout to file and serve, by 9 April 2021, a statutory declaration as to (among other things) the value of the estate, the form of the assets making up the estate and information as to any distributions made from the estate.

[9] Ms Eckhout failed to file and serve a statutory declaration by 9 April 2021. On 21 April…

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 Connolly v Eckhout

Details

AGLC: Connolly v Eckhout [2022] NZHC 293
Case: [2022] NZHC 293
Decision Date: 25 February 2022

CaseChat Overview and Summary

Michelle Lee Connolly, the daughter of the deceased Jan Daniel Eckhout, successfully sued the administrator of her father's estate, Karen Elizabeth Eckhout, under section 4 of the Family Protection Act 1955. The High Court awarded Connolly $449,741.57, which Eckhout failed to pay. Connolly applied for an order for Eckhout's arrest, sanctions against Eckhout, and costs on an indemnity basis.

The court considered whether Eckhout's default in payment fell within the exception in section 3(2)(c) of the Imprisonment for Debt Limitation Act 1908. The court found that Eckhout, as the administrator of her deceased husband's estate, acted in a fiduciary capacity. The court also found that Eckhout had been ordered to pay a sum in her possession or control, as she had declared holding sufficient funds to meet the judgment. The court exercised its discretion to issue an arrest order, with the order to lie in court until 25 March 2022, to provide Eckhout with a final opportunity to make payment. The court also ordered Eckhout to pay Connolly's costs incurred in attempting to enforce the judgment and the costs of this application on an indemnity basis.

Orders