de Gregorio v Surridge - [2017] NZHC 2061

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-602870 [2017] NZHC 2061

UNDER the Administration Act 1969

IN THE MATTER OF

the Estate of Wilbur George Surridge

BETWEEN

NUNZIO DE GREGORIO Plaintiff

AND

ANNE JOSEPHINE SURRIDGE First Defendant

AND

PAUL HOUSTON SURRIDGE Second Defendant

Hearing: 15 August 2017

Counsel:

J A Langford for Plaintiff
C T Patterson for First Defendant
S J Iorns for Second Defendant

Judgment:

28 August 2017

JUDGMENT OF CLARK J

[1] This judgment determines two interlocutory applications under s 7 of the

Administration Act 1969:

(a) an application by Anne Surridge (the first defendant) to appoint the Public Trust, Grant Thornton Ltd or Deloitte as a temporary administrator; and

(b)an application by the plaintiff for an order appointing himself as temporary administrator.

[2] At issue is the administration of the estate of Wilbur George Surridge (the deceased) who passed away on 15 December 2016. Mr De Gregorio (the plaintiff) is

DE GREGORIO v SURRIDGE and SURRIDGE [2017] NZHC 2061 [28 August 2017]

the named executor and trustee under a will executed by the deceased on 21 January

2014. The deceased had five children, two of whom are parties to this proceeding.

Jurisdiction

[3] Section 7 of the Administration Act 1969 provides:

Administration pending legal proceedings

(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.

(2) The court may, out of the estate of the deceased, grant to a temporary administrator appointed under this section such reasonable remuneration as the court thinks fit.

[4] Relatively recent decisions under s 7 have noted the sparse authority on the principles which are to guide the exercise of the court’s jurisdiction under s 7.1 The cases tend to be fact specific. Acknowledging the paucity of authority dealing with the prerequisites to the exercise of jurisdiction under s 7 Whata J in Re Estate of McHugh proceeded on the basis that:2

(a) There must be a legal proceeding touching the validity of the will of a deceased person or the grant of administration;

(b)It must be necessary to grant an order for interim administration in order to preserve and to manage the assets of the estate pending the
resolution of the proceedings; and

1 Re Estate of McHugh [2015] NZHC 1271 at [11]; and see Laery v Grout [2014] NZHC 1881 at [9].
2 At [12].

(c) The proposed appointee must be suitably qualified to perform the tasks of the administrator…

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 de Gregorio v Surridge

Details

AGLC: de Gregorio v Surridge [2017] NZHC 2061
Case: [2017] NZHC 2061
Decision Date: 28 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand, in the Wellington Registry, the court heard two interlocutory applications concerning the administration of the estate of Wilbur George Surridge. The plaintiff, Nunzio de Gregorio, who is the named executor and trustee under a will executed by the deceased, sought to be appointed as a temporary administrator. The first defendant, Anne Josephine Surridge, applied for the appointment of the Public Trust, Grant Thornton Ltd, or Deloitte as a temporary administrator instead. The case involved complex family dynamics and disputes over the validity of the will.

The legal issues the court had to decide were whether there was a legal proceeding touching the validity of the will, whether it was necessary to grant an order for interim administration to preserve and manage the assets of the estate, and whether the proposed appointee was suitably qualified to perform the tasks of the administrator. The court found that the prerequisites for the appointment of a temporary administrator were established.

The court reasoned that it was necessary to appoint an interim administrator to preserve and manage the assets of the estate pending resolution of the proceedings. The temporary administration of the estate should be put in the hands of an independent and experienced professional, rather than the plaintiff, due to the gross hostility manifested in the affidavit evidence of some of the beneficiaries towards others. The court appointed David Stuart Vance, a partner in the accountancy firm Deloitte in Wellington, as the temporary administrator of the estate.

The court made the following orders: David Stuart Vance was appointed as the temporary administrator of the estate of the late Wilbur George Surridge; David Stuart Vance was entitled to deduct from the estate his reasonable remuneration and expenses incurred in administering the estate; leave was reserved to the temporary administrator to file an application for directions where it appeared that the costs of the administration were unreasonably contributed to by any particular party or parties; and leave was reserved to the parties to apply further. The court reserved the issue of costs until the outcome of the consolidated proceedings.

Orders