Cosh v Jankey - [2025] NZHC 2537

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-628

[2025] NZHC 2537

IN THE MATTER of the ESTATE OF NICHOLAS JOHN STRODE COSH

BETWEEN

LIVIA WREN DARRAGH COSH and SUSANNAH LAUREN COSH

Applicants

AND

ESTHER KAMALA JANKEY

Respondent

Teleconference: 1 September 2025

Appearances:

T R Mounsey for Applicants D H Grantham for Respondent

Judgment:

1 September 2025, 5pm

ORAL JUDGMENT OF McHERRON J

[1] This is an application by the daughters of the late Nicholas Cosh, Livia Cosh and Susannah Cosh, for interim injunctive relief restraining the respondent, Esther Jankey, from taking steps in the administration of the late Mr Cosh’s estate, pending resolution of substantive proceedings.

[2] The application is made without notice under rr 7.19(4) and 7.23(1) of the High Court Rules 2016. However, Ms Grantham has been served the application on a Pickwick basis and she attended a telephone conference with Mr Mounsey this afternoon.

COSH v JANKEY [2025] NZHC 2537 [1 September 2025]

Background

[3] By way of background, the deceased died on 17 March 2025. At the time of his death, he had recently married the respondent, on 3 March 2025. The applicants assert that the marriage revoked the deceased’s 2017 will, under which they were the sole residuary beneficiaries, apart from a £50,000 bequest to Ms Jankey.

[4] The applicants intend to challenge the validity of the marriage in the Family Court under ss 27–31 of the Family Proceedings Act 1980, alleging the deceased lacked capacity to consent. They also intend to seek the respondent’s removal as administrator under s 21 of the Administration Act 1969.

[5] The respondent was granted letters of administration on 28 April 2025. The applicants have requested assurances that the respondent will not distribute estate assets or occupy the deceased’s residence without agreement or Court order but such assurances have not been provided.

Legal test

[6]The applicable test for interim injunctive relief is well established:1

(a)there must be a serious question to be tried;

(b)the balance of convenience must favour the granting of relief;

(c)the overall justice of the case must support the making of the order.

Analysis

Serious question to be tried

[7] The evidence before the Court includes conflicting medical opinions regarding the deceased’s cognitive capacity in the months preceding his death. Dr Fullick assessed the deceased as lacking capacity in May 2024 and again in January 2025.

1 NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12], affirmed in affirmed in Intellihub v Genesis Energy Ltd [2020] NZCA 344 at [23].

Dr van Zyl assessed him as having capacity in December 2024 but acknowledged the possibility of fluctuation and masking.

[8] The applicants have provided detailed affidavit evidence supporting their concerns. Central to the validity of the marriage and the administration of the estate is the issue of capacity. I am satisfied on the material that has been provided that there is a serious question to be…

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.

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Details

Case: [2025] NZHC 2537
Decision Date: 1 September 2025, 5pm

CaseChat Overview and Summary

This case involves an application by the daughters of the late Nicholas Cosh, Livia Cosh and Susannah Cosh, for interim injunctive relief against Esther Jankey, the respondent, to prevent her from administering the estate of the deceased pending resolution of substantive proceedings. The late Mr Cosh had recently married the respondent on 3 March 2025, and the applicants argue that this marriage revoked his 2017 will, which named them as the sole residuary beneficiaries, apart from a bequest of £50,000 to Ms Jankey. They intend to challenge the validity of the marriage in the Family Court and seek the respondent’s removal as the administrator under the Administration Act 1969.

The legal issues before the court were whether there was a serious question to be tried, whether the balance of convenience favoured granting the relief, and whether the overall justice of the case supported making the order. The court was satisfied that there was a serious question to be tried given the conflicting medical opinions regarding the deceased's cognitive capacity. The balance of convenience was found to favour the granting of relief due to the applicants' potential entitlement to the entirety of the estate and the risk of dissipation of estate assets. The overall justice of the case also supported the making of the order given the applicants' reasonable conduct and the potential conflict of interest arising from the respondent's dual role as administrator and potential beneficiary.

The court made several orders, including treating the application as an on notice application and restraining the respondent from dealing with any assets of the estate unless agreed in writing by the applicants or otherwise ordered by the court. Timetable directions were also issued for the filing and serving of notices of opposition, affidavit evidence, and submissions on the interim injunction application. The court reserved costs pending further submissions.

Orders