De Lautour v De Lautour

[2022] NZHC 230

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2021-416-25

[2022] NZHC 230

IN THE MATTER OF

the Estate of Garth Joseph Hibbert

UNDER

section 44 of the Administration Act 1969 and Part 27, Subpart 5, r 27.32 of the

High Court Rules 2016 for an inventory and account

BETWEEN

ANNA DE LAUTOUR and CATHERINE ANN BETH

Applicants

AND

ALLAN COLQUHOUN DE LAUTOUR

Respondent

On the Papers
Counsel:	N Weatherhead for the Applicants
Judgment:	18 February 2022

JUDGMENT OF GWYN J

[1]                  The applicants, Anna de Lautour and Catherine Ann Beth, are the stepdaughter and daughter of the deceased, Garth Joseph Hibbert, respectively.

[2]                  Mr Hibbert died on 15 November 2018. Allan Colquhoun de Lautour, the respondent, is the administrator of Mr Hibbert’s Estate, pursuant to Probate granted on 27 November 2019.

[3]                  The applicants, the respondent and their brother Guy de Lautour are the residuary beneficiaries of Mr Hibbert’s estate in equal shares.

DE LAUTOUR v DE LAUTOUR [2022] NZHC 230 [18 February 2022]

[4]                  The applicants’ substantive proceedings are brought under s 44 of the Administration Act 1969 and Part 27, subpart 5, r 27.32 of the High Court Rules 2016. The proceedings seek details from the  respondent of the  assets  and liabilities of   Mr Hibbert’s estate and an accounting of the administration of the estate. The applicants say that the respondent has failed to provide full and complete details of the assets and liabilities of the estate on their request.

[5]                  On 20 October 2021 I gave directions as to service of the proceedings on the respondent and Guy de Lautour.

[6]                  Counsel for the applicants has now filed a memorandum dated 16 February 2022, together with affidavits of service in relation to both Allan de Lautour and  Guy de Lautour.

[7]                  17 December 2021 was the date on which the respondent was to file and serve a statement of defence or file the accounts sought as to the administration of the estate. Mr de Lautour has not filed a statement of defence and counsel for the applicants advise that nor has he communicated directly with counsel or the applicants.

[8]                  The applicants now seek orders directing the respondent to give account of the assets and liabilities of the estate and an accounting of the administration of the estate and costs, in reliance on r 27.32 of the High Court Rules 2016.

[9]The orders are sought on the basis of the following matters:

(a)The deceased died on 15 November 2018.

(b)Probate   of   his   last    will   was   granted   to   the respondent  on 27 November 2019.

(c)No accounting of the administration of the estate has been provided by the respondent since probate was granted to him.

(d)The respondent has a duty to keep proper accounts that are clear, accurate and faithful and should be rendered regularly to the applicants.

(e)The respondent also has a duty to produce the accounts of the estate when asked. A request for the accounts has been made on a number of occasions, by the applicant Anna de Lautour several times and on     15 March 2021 by email from the applicants’ counsel to the respondent. No information has been provided by the respondent.

[10]              The applicants have specific concerns about the administration of the estate which are set out in an affidavit from Anna de Lautour dated 4 October 2021. In particular, Ms de Lautour raises questions about:

(a)Information and details of a possible account with Rabobank.

(b)Investments referred to in a memorandum dated 1 January 2014 from Allan de Lautour to Mr Hibbert which refers to “Bonds – Goodmans, Air NZ, Kiwibank, ANZ/National”.

(c)Bank balances referred to in a further exhibit, which appear to record balances as at 6 July 2015.

(d)Information showing that  on  30  October  2018  (15  days  before  Mr Hibbert’s death) a deposit was made into ANZ account 01-0641- 0019545-00 in the name of Ranui Vineyard Limited, of $25,000, with the narrative “settlement of Estate settlement Estate”. The respondent is the sole director and shareholder of Ranui Vineyards Limited.

[11]              The applicants invite an order on the papers, in the absence of any response by the respondent. Counsel notes that the estate is a modest one and involves bank accounts, possible investments and the proceeds of a retirement village repayment of capital for a serviced apartment.

[12]              The respondent is a chartered accountant practising in his own firm in Gisborne and, counsel submits, he should not need to engage any accounting advice or assistance to prepare and file details of the assets and liabilities and his administration.

[13]              Counsel submits that in light of the modest value of the estate, the respondent’s profession and the respondent’s previous failure to respond to requests for details, that one month from service of the order is sufficient.

Orders

[14]              Having read Ms de Lautour’s affidavit and counsel’s memorandum I am satisfied that it is appropriate to make the orders sought on the papers.

[15]              Accordingly, I direct that the respondent is to file the following documents, within one month of the date of service of this judgment:

(a)an accurate inventory of the estate of Garth Joseph Hibbert;

(b)an account of the estate that –

(i)is accurate;

(ii)states the dates and details of all receipts and disbursements;

(iii)states which of the receipts and reimbursements were on capital account and which were on revenue account; and

(iv)states how the monies and assets received have been disbursed or otherwise disposed of.

[16]The account must be current to the date of service of this order.

[17]The respondent must file an affidavit verifying the documents.

Costs

[18]              The applicants also seek an order for costs. In Mr Weatherhead’s submission those costs should not be a charge on the estate, but should be payable by the respondent in his personal capacity. The applicants are entitled to costs and I am inclined to direct that they are payable by the respondent personally. If the respondent

wishes to be heard on that question, he should file and serve a memorandum explaining his position, also within one month of the date of service of this judgment.

Gwyn J

Solicitors:

Wilson Barber & Co, Gisborne