DAVID THOMAS CHRISTOPHER RICHARD THOMAS AND MICHAEL ROBERT GARNHAM

[2024] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000624

[2024] NZHC 3028

UNDER

s 21 of the Administration Act 1969 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

the estate of Yvonne Thomas

BETWEEN

DAVID THOMAS

First Applicant

CHRISTOPHER RICHARD THOMAS
Second Applicant

AND

MICHAEL ROBERT GARNHAM

Respondent

On the papers:
Counsel:	D M Fraundorfer for Applicants
Judgment:	16 October 2024

JUDGMENT OF GRAU J

[1]    The applicants in this matter, Messrs David and Christoper Thomas,1 apply to remove and replace the respondent, Mr Michael Garnham, as the executor of the estate of Yvonne Thomas under s 21 of the Administration Act 1969. Mrs Thomas was the mother of David and Christopher, who are among the beneficiaries of her estate. They also seek permission to commence this proceeding by way of originating application (which is required in this case), and they seek directions for service.

1      For ease of reference, I will refer to them by their first names.

THOMAS v GARNHAM [2024] NZHC 3028 [16 October 2024]

Background

[2]    Mrs Thomas passed away on 5 March 2023. She had four children; David, Christopher, Nigel, and Deborah. She left behind a final will dated 1 July 2021 (the Will). Under the Will, Mr Garnham and Ms Jill Masters (Mrs Thomas’ sister) were the appointed executors. There were specific gifts of $200,000 to Nigel for the purchase of a property,  and  $100,000  to  go  to  David.  Nigel  was  to  receive  Mrs Thomas’ home and chattels at the time of her death. The residue of the estate was to be divided between the four children in equal shares, after payment of the estate’s debts and expenses. Mrs Thomas also left specific wishes regarding a family headstone. The estate itself was small, comprising a property in Paraparaumu (the Property), bank accounts, a car, and chattels and personal items.

[3]    On 14 March 2023, Ms Masters renounced her executorship. Mr Garnham applied for probate of the Will in his sole name. Probate was granted on 7 July 2023. The Property was then sold for $925,000, and the gifts were distributed to Nigel and David.

[4]    However, the estate has still not been wound up. The applicants say that the residuary beneficiaries have not received their distributions and the wishes regarding the family headstone have not been complied with, despite more than 12 months passing since the grant of probate.

[5]    It appears that Mr Garnham has advised the beneficiaries the estate will not be wound up unless, and until, the beneficiaries sign a Deed of Indemnity and Release, which the applicants say would result in over $90,000 in estate funds being held back for the purpose of Mr Garnham’s fees and estate expenses. The applicants say that, despite numerous requests for information, Mr Garnham has not explained why such an amount is required to meet his likely fees and costs.

[6]    The relationship between the applicants and Mr Garnham has deteriorated rapidly. They do not want the already small estate to diminish even further in size. They seek to remove Mr Garnham as the executor on the grounds that:

(a)he has failed to administer the estate in a timely and cost-effective way or in accordance with the deceased’s final wishes;

(b)he has failed to be transparent or provide any information regarding fees charged to the estate;

(c)he has failed to act impartially or even-handedly towards the beneficiaries;

(d)he is hostile towards the applicants; and

(e)there is a complete breakdown of trust and confidence between the applicants and Mr Garnham.

[7]    Should Mr Garnham be removed as executor, the applicants seek Ms Nicola Scott, a partner of law firm Bush Forbes in Tauranga, to be appointed as executor.

Discussion

[8]    Part 19 of the High Court Rules 2016 (the HCR) governs the originating application procedure. Rule 19.5 enables the Court to permit any proceeding not mentioned in rr 19.2–19.4 to be commenced by way of originating application if it is in the interests of justice to do so. The Court’s permission to do so may be sought without notice.2 The interests of justice mean that the Court must secure the just, speedy and inexpensive determination of the proceeding.3 Proceeding by originating application does not require the exchange of a statement and claim or statement of defence (although a Judge may order that they be exchanged). Evidence is generally given by way of affidavit only. Accordingly, it is generally inappropriate to allow commencement via originating application where the factual issues are wide-ranging and disputed or the legal issues are particularly numerous or complex.

[9]    The specific matters considered by the Court when determining whether it is in the interests of justice to proceed by way of originating application were summarised by Osborne J in Solar Bright Ltd v Martin as follows:4

(a)Whether the exchange of statements of claim and defence are needed to better define the issues between the parties.

2      High Court Rules 2016, r 19.5.

3      Solar Bright Ltd v Martin [2019] NZHC 300 at [18].

4      At [20]–[24].

(b)Whether interlocutory procedures are needed to resolve issues such as discovery.

(c)Whether the application is straightforward, such as the application of a statutory test, or whether it is likely to involve an application of the common law principles or require expert evidence or cross- examination.

(d)Whether the application involves multiple parties or may involve cross- claims.

[10]   As the applicants observe in their memorandum to the Court, proceedings for the removal and appointment of executors under the Administration Act have routinely been permitted to proceed by way of originating application.5 The issue is therefore whether the current application is an appropriate one to be allowed to commence by originating application, taking into account that the application for leave to proceed via such procedure has been made without notice.

[11]   Having read the affidavits of David and Christopher and the memorandum of counsel filed in support, I am satisfied that this proceeding is suitable to commence by way of originating application. While there appear to be some intricacies in the factual background  to  this  matter—for  example,  complicated   family   dynamics   and Mr Garnham’s involvement in the drafting of the Will—the actual factual and legal issues to be determined are confined and can be addressed effectively by way of originating application. I do not consider that statements of claim or statements of defence will be required to help define issues or the scope of the proceedings. The issue is a relatively straightforward one and involves the application of the provisions in the Administration Act. There is also a limited number of parties.

[12]   At this point, there is nothing in particular that would suggest any need to cross-examine, nor is there anything to suggest the need for numerous interlocutory procedures such as discovery. The applicants have provided comprehensive affidavits with a significant amount of documentary evidence already, and further evidence

5      See, for example, Bean v Bean [2020] NZHC 171; Brown v Brown [2023] NZHC 1180; and

Parbhu v Parbhu [2022] NZHC 50.

could be similarly adduced by affidavit. I note that the Deed of Indemnity at issue does not appear to have been provided. That should be remedied promptly.

[13]   The interlocutory application filed also seeks directions for service of the originating application on Mr Garnham, Nigel, and Deborah. Such directions are appropriate and are made accordingly.

[14]I therefore make the following directions:

(a)Leave is granted for the proceedings to be dealt with as an originating application under Part 19 of the High Court Rules 2016.

(b)The applicants are to provide the Court with a copy of the Deed of Indemnity that is at issue.

(c)The applicants are to serve the originating application and supporting documents, together with this judgment, promptly, on Mr Garnham, Mr Nigel Thomas, and Mrs Deborah Verbeek. Once service has been effected, the applicants are to file an affidavit(s) of service.

(d)Mr Garnham is to file any opposition to the proceedings, together with any affidavit evidence in support, within 15 working days of receiving the originating application, supporting documents, and this judgment.

(e)The parties are to appear in the Judge’s Chambers List on 25 November 2024 for further directions, with a view to setting down a date for hearing (if the originating application is opposed) and other necessary timetabling. Should that date be unsuitable, the parties are to liaise with each other and the registry to obtain a suitable date.

Grau J

Solicitors:
iCLAW, Hamilton