Elishua v Freeland - [2022] NZHC 895

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-150

[2022] NZHC 895

UNDER Part 18 of the High Court Rules 2016

AND UNDER

section 44 of the Administration Act 1969

AND UNDER

sections 83A and 83B of the Trustee Act 1956

IN THE MATTER OF

the Estate of Ilse Goldstein

BETWEEN

HUE ELISHUA

Applicant

AND

GORDON JEFFREY FREELAND

First Respondent

THE TRUSTEES FOR THE GOLDSTEIN FAMILY TRUST (NO. 1)
Second Respondents

THE TRUSTEES FOR THE RATNAM FAMILY TRUST

Third Respondents

On the Papers

Counsel:

J Dean and D McLay for the Applicant D McKay for the First Respondent

A Butler for the Second Respondents
No appearance for the Third Respondents

Judgment:

3 May 2022

COSTS JUDGMENT OF GWYN J

Solicitors:
John Dean Law Office, Wellington Perpetual Guardian, Auckland Becker & Co Ltd, Wellington

ELISHUA v FREELAND [2022] NZHC 895 [3 May 2022]

Background

[1] The applicant, Hue Elishua, is the sole surviving grandson of Ilse Goldstein, who died on 22 October 2009. Mr Elishua was one of three residuary beneficiaries under the will. Probate was granted on 3 March 2010 and the estate was finally distributed by the end of 2013.

[2] Mrs Goldstein’s will, dated 8 November 2005, contained the following key provisions:

(a)Mr Freeland was appointed as the executor of the estate.

(b)Any debts owed by the Goldstein Family Trust and the Ratnam Family Trust were forgiven.

(c)$50,000 was gifted to the Goldstein Family Trust.

(d)Mr Freeland was to distribute personal chattels at his discretion, and in accordance with any instructions left by Mrs Goldstein.

(e)The residue of the estate was split into three equal portions, to the Goldstein Family Trust, the Ratnam Family Trust and Mr Elishua (when he turned 21).

[3] Mr Elishua claimed that he had not received his full entitlement from the estate. He also claimed that the estate expenses and administration fees were excessive. Mr Elishua applied for leave to appeal out of time for various orders, including an order under s 44 of the Administration Act 1969 that the administrator of the estate provide “a true and perfect inventory and account of the estate of the deceased”.

[4] Mr Freeland, the first respondent, opposed the application for leave, on the basis that, as executor, he had already provided all the relevant information to Mr Elishua.

[5] The application for an extension of time was heard by Collins J on 8 March 2019. Justice Collins dismissed the application.1 The Judge noted that, as a consequence, the first, second and fourth limbs of the originating application were struck out.2

[6] Mr Elishua’s alternative claim, under s 83B of the Trustee Act 1956, was for an audit of the accounts of the Goldstein Family Trust and the Ratnam Family Trust. Both the Goldstein Family Trust and the Ratnam Family Trust were established by Mrs Goldstein during her lifetime. Mr Elishua is a discretionary and final beneficiary of both trusts.

[7] As Collins J noted,3…

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 Elishua v Freeland

Details

AGLC: Elishua v Freeland [2022] NZHC 895
Case: [2022] NZHC 895
Decision Date: 3 May 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Elishua v Freeland involved a dispute over the estate of Ilse Goldstein, managed by Gordon Freeland as executor. Hue Elishua, the sole surviving grandson and a residuary beneficiary, contested the distribution of the estate, alleging that he did not receive his full entitlement and that estate expenses and administration fees were excessive. Elishua sought leave to appeal out of time for various orders, including an audit of the estate. The first respondent, Freeland, opposed the application, asserting that all relevant information had already been provided to Elishua. The court was required to determine whether Elishua was entitled to the relief sought and, if so, whether the applicants or the respondents were entitled to costs.

The court found that Elishua's application for leave to appeal out of time was dismissed, and the first, second, and fourth limbs of the originating application were struck out. Elishua's alternative claim under section 83B of the Trustee Act 1956, for an audit of the Goldstein Family Trust and the Ratnam Family Trust, was also dismissed as Elishua did not amend his pleadings as directed. The court further noted that Elishua had legal aid for certain periods, which limited the scope of costs awards against him. The first respondent, Freeland, was awarded costs for the period after March 2019, as Elishua's claims lacked merit, and for the period before March 2019, excluding the period when Elishua had legal aid. The court reserved the right for the second respondent to seek costs from the Goldstein Family Trust fund.

The final orders were that the first respondent, Gordon Freeland, was to be awarded costs for the periods specified, and leave was reserved for the second respondent to seek costs from the Goldstein Family Trust fund.

Orders