Fox v Fox - [2018] NZHC 1021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1055

[2018] NZHC 1021

IN THE MATTER of an application by Kenneth John Fox as sole executor and trustee of the Estate of Eileen Phyllis Fox

BETWEEN

KENNETH JOHN FOX

Applicant

AND

CLARENCE NIGEL FOX

First Respondent

CARL GEORGE LAWRENCE FOX

Second Respondent

Hearing: 24 April 2018

Counsel:

R D Butler for Applicant L Kemp for Respondents

Judgment:

11 May 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 11 May 2018 at 2:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Sellars & Co (Helensville) for Applicant Luke Kemp (Kumeu) for Respondents

FOX v FOX [2018] NZHC 1021 [11 May 2018]

Introduction

[1] Mr Kenneth Fox is the sole executor and trustee of the estate of Eileen Phyllis Fox. Mrs Fox died on 19 November 2011. Mr Fox obtained probate of Mrs Fox’s will on 4 April 2012.

[2] Mr Fox wants to conclude his administration of Mrs Fox’s estate by selling four pieces of land and distributing the proceeds in accordance with the will. But, two of the properties are occupied by the respondents (one each) and they refuse to leave them. They assert entitlement to the properties (for reasons I will come to) arising out of their familial relationship with Mrs Fox. Neither respondent is a beneficiary under the will.

[3] Mr Fox applies for orders requiring the respondents to vacate and give up possession of the estate’s property. Each of the respondents filed holographic notices of opposition and Mr Clarence Fox filed an affidavit in support of his opposition.

Procedure

[4] First, there are some procedural difficulties for Mr Fox. He commenced his proceeding by Notice of Originating Application, relying on ss 53 and 57 of the Administration Act 1969, and, for good measure, the inherent jurisdiction of the Court.

[5] Section 53 does not assist Mr Fox. It simply gives the Court the power to direct the executor of a will to take necessary action to progress the administration of the estate. It confers no powers in respect of third parties.

[6] Section 57 does not assist Mr Fox either. It provides simply that the practice of the Court in regard to administration continues to apply except to the extent it is affected by other provisions in the Administration Act or the rules made pursuant to it.

[7] The point is that the administrator of an estate which includes real estate has the same rights and is subject to the same duties and liabilities with respect to the real estate as had the testator/testatrix.1 If an administrator wants possession of real estate

1 Administration Act 1969, s 30.

through intervention by the Court, then he or she must establish the legal basis for the intervention.

[8] The usual way for an administrator to obtain an order for possession of land against occupiers without right is via a summary judgment proceeding under…

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 Fox v Fox

Details

AGLC: Fox v Fox [2018] NZHC 1021
Case: [2018] NZHC 1021
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Fox v Fox involved Kenneth John Fox, the sole executor and trustee of the estate of Eileen Phyllis Fox, and two respondents, Clarence Nigel Fox and Carl George Lawrence Fox, who were occupying properties belonging to the estate. Kenneth Fox sought orders for the respondents to vacate and relinquish possession of the properties to enable the estate to be distributed in accordance with the deceased's will. The respondents claimed entitlement to the properties based on their familial relationship with the deceased and their alleged agreement with Kenneth Fox that they could occupy the properties in return for not contesting the will. The court had to determine the appropriate legal procedure for Kenneth Fox to obtain possession of the properties and whether the respondents' claims justified their continued occupation.

The court found that the usual procedure for an executor to obtain possession of land against occupiers without right was via a summary judgment proceeding under Part 12 of the High Court Rules, but Kenneth Fox had proceeded by way of an originating application, which was not the correct procedure. However, the court treated the originating application as an application under Part 13 of the High Court Rules, which applied to proceedings claiming the recovery of land that was occupied solely by unlawful occupiers. The court found that the respondents' occupation of the properties was unlawful as they were not tenants or subtenants holding over after the termination of a tenancy or subtenancy. The court held that the respondents' claims did not prevent Kenneth Fox from carrying out his duty as the executor and administrator of the estate. The court found that the respondents had no legal right to continue to occupy the properties, and they were unlawful occupiers within the meaning of the High Court Rules.

The court granted Kenneth Fox's application and ordered the respondents to vacate and relinquish possession of the properties within 28 days of the date of the order. The court also ordered the respondents to pay costs on a 2B basis, in the event of disagreement, these may be fixed by the Registrar. The court emphasised that the executor of an estate is obliged to implement the deceased's testamentary instructions by getting in the assets of the estate and distributing them. The court found that the respondents' allegations of an agreement with Kenneth Fox were denied by the executor and had no legal basis to prevent the executor from carrying out his duty. The court held that the respondents had taken no steps to oppose the will or to otherwise make a claim to the properties they now occupied. The court found that the respondents had no legal right to continue to occupy the lands in question and were unlawful occupiers within the meaning of the High Court Rules.

In conclusion, the court granted Kenneth Fox's application and ordered the respondents to vacate and relinquish possession of the properties within 28 days of the date of the order. The court held that the respondents had no legal right to continue to occupy the lands in question and were unlawful occupiers within the meaning of the High Court Rules. The court emphasised that the executor of an estate is obliged to implement the deceased's testamentary instructions by getting in the assets of the estate and distributing them. The court found that the respondents' allegations of an agreement with Kenneth Fox were denied by the executor and had no legal basis to prevent the executor from carrying out his duty. The court ordered the respondents to pay costs on a 2B basis, in the event of disagreement, these may be fixed by the Registrar.

Orders