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 tried in that regard.

Balance of convenience

[9]    The applicants are potentially entitled to the entirety of Mr Cosh’s estate under the 2017 will, apart from the £50,000 bequest to Ms Jankey, should the marriage be declared void. The applicants say they have been denied access to the deceased’s residence and chattels, and have not received formal updates on the administration of the estate.

[10]   They also say that the respondent has not provided assurances she will refrain from distributing assets or occupying the residence. The risk of dissipation of estate assets is therefore, on the applicants’ submission real and irreparable harm may result if the status quo is not preserved.

[11]   The applicants have provided an undertaking as to damages and on this basis I am satisfied the balance of convenience favours the granting of interim relief at least to the point where the injunction application can be properly argued on notice. In that regard, I am grateful to Ms Grantham for appearing at short notice. However, I emphasise that she has not yet had an opportunity to obtain instructions as her client is overseas and will not return to New Zealand until 19 September 2025.

Overall justice

[12]   I consider that the applicants have thus far acted reasonably and in particular in providing undertakings prior to filing this application. If they are correct that the respondent has failed to engage meaningfully with them, then coupled with her dual role as administrator and potential beneficiary, there would on my preliminary assessment be a conflict of interest warranting judicial intervention. Therefore, at least

on a preliminary basis, the overall justice of the case supports the making of the orders sought.

Orders

[13]Accordingly, I make the following orders:

(a)The  application  is  to  be  treated  as  an  on   notice  application.   Ms Grantham confirmed she accepts service on behalf of the respondent.

(b)Pending determination on notice of the applicants’ interim injunction application, Esther Kamala Jankey is restrained from distributing or otherwise dealing with any assets of the estate of Nicholas John Strode Cosh, including but not limited to real property, personal chattels, and financial accounts, unless:

(i)such steps are agreed in writing by the applicants; or

(ii)there is a further order of this Court.

[14]I make the following timetable directions:

(i)The respondent must file and serve a notice of opposition and affidavit evidence by 3 October 2025.

(ii)The applicants may file and serve affidavit evidence strictly in reply no later than 10 October 2025.

(iii)By 10 October 2025 the applicants must file and serve any proceedings in the Family Court to challenge the validity of the marriage and in the High Court to remove the respondent as administrator of Mr Cosh’s estate.

(iv)Submissions on the on notice application for interim injunction must be  filed  and  served  by  the  applicants  no  later  than 17 October 2025.

(v)Submissions by the respondent in response must be filed and served no later than 24 October 2025.

(vi)The Registry is to set down the on notice interim injunction application for a half day hearing on the first available date after 24 October 2025, to be allocated in consultation with counsel.

[15]Counsel made no submissions as to costs and so costs are reserved.

McHerron J