Cundy v Cundy - [2019] NZHC 413

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001933

[2019] NZHC 413

BETWEEN
ANN MAY CUNDY

Applicant

AND

JOHN FRANCIS CUNDY as the executor of the Estate of CHARLES ROY CUNDY

Respondent

Hearing:
15 February 2019

[Further submissions/affidavits received 28 February 2019]

Counsel:

M D Lloyd and P Gallagher for the Applicant K Lee and J M Skinner for the Respondent

Judgment:

12 March 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 12 March 2019 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel: M D Lloyd, Auckland

Solicitors: Paul Gallagher Legal, Auckland Skinners Law, Auckland

CUNDY v CUNDY [2019] NZHC 413 [12 March 2019]

[1] The parties to this proceeding are estranged siblings. The applicant, Ann Cundy, seeks an order appointing her the administrator of their father’s estate.

[2] The respondent, John Cundy, is the current executor under the will. He has agreed to step down from that role but opposes the appointment of his sister as administrator. Instead, he proposes the appointment of an independent solicitor, Mr Cantrell or a person chosen by the New Zealand Law Society.

How did this situation arise?

[3] The parties are two of the five children of the deceased (Charles Cundy). Two of the other children, Paul and Matthew, support their sister. The other brother, Edward, does not wish to have any involvement in this proceeding.

[4] Charles died on 17 May 2017. John was appointed the executor and trustee of his will. Under the terms of the will, the residue of the estate was given to John on the proviso that the sum of $50,000 was paid to each of Paul, Matthew and Ann within three years of the date of his death. No provision was made for Edward because he had earlier received his father’s half-share in a property which they owned together.

[5] Ann alleges that John and his wife, Susanne, took money from Charles prior to his death. Her allegations centre on the sale of a property which I will refer to as “The Avenue”, and the purchase of another property referred to as “Oneriri Rd”.

[6] Charles owned a half-share in The Avenue; John and Susanne owned the other half. John says that his father told him he wanted to give his share in The Avenue to John and Susanne, just as he had gifted a half-share in another property to Edward.

[7] The Avenue was sold in 2014 for $1,061,888. The sale proceeds were used to discharge John and Susanne’s mortgage over The Avenue ($319,029.76), and a further advance was applied to the payment of the deposit on Oneriri Rd ($300,000). The balance was distributed to Charles ($170,758.27) and to John and Susanne ($170,758.27).

[8] The Oneriri Rd property was purchased later that year for $650,000. That property has a two-bedroom cottage on it in which Charles lived alone.

[9] Ann has…

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 Cundy v Cundy

Details

AGLC: Cundy v Cundy [2019] NZHC 413
Case: [2019] NZHC 413
Decision Date: 12 March 2019

CaseChat Overview and Summary

The case of Cundy v Cundy involved estranged siblings Ann and John, who were disputing the administration of their father Charles' estate. Ann sought to be appointed as the administrator of the estate, while John opposed her appointment and suggested the appointment of an independent solicitor or a person chosen by the New Zealand Law Society. The court had to decide who should be appointed as the administrator of Charles' estate, considering the animosity between the siblings and the potential for a lack of impartiality. The court found that the best interests of the beneficiaries required the appointment of a neutral and independent third party to the role as executor. The court declined to appoint Ann as the executor of the estate and directed the Registrar to confer with the New Zealand Law Society about the nomination of a suitably qualified solicitor to administer the estate. The nominated solicitor should be independent of the Cundy family, their friends, and associates, and should have at least 10 years of experience in estate administration and litigation. The court also noted that any costs over and above the $5,000 offered by John towards the administrator's costs would be met from the estate.

This case highlights the importance of appointing an impartial and independent executor in cases where there is a dispute between beneficiaries. The court considered the evident animosity between the siblings and the potential for a lack of impartiality, and found that it was necessary to appoint a neutral third party to ensure that the estate was properly administered and trusts were properly executed. The court also noted the importance of ensuring that reasonable steps were taken to administer the estate in the most cost-effective manner, and that any costs over and above the $5,000 offered by John towards the administrator's costs would be met from the estate.

Orders