Elishua v Freeland - [2019] NZHC 398

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-000150

[2019] NZHC 398

UNDER Part 19 of the High Court Rules

UNDER

Section 44 of the Administration Act 1969

UNDER

Sections 83A and 83B of the Trustee Act 1956

IN THE MATTER OF

the estate of ISLE GOLDSTEIN

BETWEEN

HUE ELISHUA

Applicant

AND

GORDON JEFFREY FREELAND

First Respondent

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

Second Respondent

THE TRUSTEES FOR THE RATNAM FAMILY TRUST (NO. 1)

Third Respondent

Hearing: 8 March 2019

Counsel:

D E McLay for Applicant

K H Lawrence for First Respondent
No appearance for Second and Third Respondents

Judgment:

11 March 2019

JUDGMENT OF COLLINS J

ELISHUA v FREELAND [2019] NZHC 398 [11 March 2019]

Introduction

[1] 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. Mr Elishua now seeks leave to apply 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”.

[2] Mr Freeland, who was the executor of Mrs Goldstein’s estate, opposes the application for leave on the basis that he has already provided all the relevant information to Mr Elishua. Mr Freeland also claims that Mr Elishua is pursuing this application as a “personal vendetta” rather than because of any legitimate desire for information.

Background

[3] Mr Elishua was born Hugh Ratnam. He is the son of Carol and Kelvin Ratnam. In 2008, Mr Elishua moved to Australia and in 2015 he changed his name to Hue Elishua.

[4] When Mrs Goldstein died in 2009, she left a will dated 8 November 2005. The key provisions of that will were:

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

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

(3)$50,000 was gifted to the Goldstein Family Trust.

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

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

[5] Both the family trusts were established by Mrs Goldstein during her lifetime. Mr Elishua is a discretionary and final beneficiary of both trusts. The other main discretionary beneficiaries of the Goldstein Family Trust are Michael Goldstein, Mr Elishua’s uncle, and his partner. The other main discretionary beneficiaries of the Ratnam Family Trust are Mr Elishua’s parents. Mrs Goldstein left a memorandum of wishes in relation to the Goldstein Family Trust in which she explained that Michael Goldstein and his partner were to receive the benefit of the trust…

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 [2019] NZHC 398
Case: [2019] NZHC 398
Decision Date: 11 March 2019

CaseChat Overview and Summary

In Elishua v Freeland, the applicant, Hue Elishua, sought leave to apply out of time for various orders, including an order under section 44 of the Administration Act 1969 that the administrator of the estate of his grandmother, Ilse Goldstein, provide a true and perfect inventory and account of the estate. The executor of the estate, Gordon Jeffrey Freeland, opposed the application. The court had to decide whether the applicant's application for leave to apply out of time should be granted and if so, whether an order under section 44 of the Administration Act 1969 should be made.

The court held that the application for leave to apply out of time should not be granted. The court found that there was no justification for an application under section 44 of the Administration Act 1969, as the estate was small, had been distributed, and the executor had already provided relevant information to the applicant. The court also held that the applicant's alternative claim for an audit of the accounts of the Goldstein Family Trust and the Ratnam Family Trust, and his claim for unspecified equitable relief, required amended pleadings. The court dismissed the application for an extension of time and struck out the first, second, and fourth limbs of the originating application. The applicant was to file an amended pleading by 3.00 pm on 29 March 2019 if he wished to progress his remaining claims. The court also dismissed the applicant's application for costs.

Orders