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 Part 12 of the High Court Rules. That is what the executrix did in Harvey v Beveridge,2 the only authority cited by Ms Davenport QC in her written submissions on behalf of  Mr Fox. The case has no application to the procedure adopted for Mr Fox.

[9]An alternative procedure is provided by Part 13 of the High Court Rules:3

This Part applies to every proceeding in which the plaintiff claims the recovery of land that is occupied solely by 1 or more unlawful occupiers.

[10]An unlawful occupier means a person who:4

(a)occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff's predecessor in title; and

(b)is not a tenant or subtenant holding over after the termination of a tenancy or subtenancy.

[11]              Part 13 applies even if a plaintiff applies for summary judgment under Part 12. As I have pointed out, the usual way for an administrator to recover land is to seek summary judgment – it is the most expeditious procedure available. But here, although Part 13 applies, Mr Fox has proceeded by way of originating application. It is not the correct procedure.

[12]              However, save for the fact that the claim by Mr Fox has not been set out in a statement of claim supported by a notice of proceeding, the Part 13 procedure has been complied with. Accordingly, I am going to treat the originating application as an irregularity and deem it to be an application under Part 13.5 I am not going to direct new pleadings be filed and served, nor that amendments be made to the existing documents.

2      Harvey v Beveridge [2014] NZCA 72, [2014] NZAR 677.

3      High Court Rules 2016, r 13.2(1).

4      Rule 13.1.

5      Rule 1.5.

[13]              The objective of the High Court Rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.6 In this case, there is no prejudice to the respondents if I determine the claim for possession of the lands they occupy on the materials now before me. They have been given notice of the claim, have responded to it, been given every opportunity to take part in the pre- hearing procedure (and, for the most part, failed to do so) and were represented by counsel at the hearing. If I direct re-pleading or amendment it would serve no purpose, save to further drain the funds of the estate and delay what I have concluded is an inevitable outcome. That would be unjust.

Discussion

[14]              The reasons given by the respondents to justify their continued occupation of the estate’s properties are as follows.

[15]              On 4 October 2012, members of Mrs Fox’s family attended a meeting to discuss the distribution of her estate. Among those present were Mr Fox and the respondents.

[16]              The respondents contend that a verbal agreement was reached with Mr Fox that they would be able to occupy the properties in question in return for an undertaking that neither of them would contest Mrs Fox’s will.

[17]              The existence of this promise is said to be substantiated by provisions in a deed of family settlement drafted after the meeting which contemplated that the respondents would receive the properties in return for respective contributions of $75,000 to the estate and rent payments thereafter.

[18]              Despite the efforts of Mr Fox, the deed was never signed. However, the respondents submit that this aspect of the draft deed evinces an intention of Mr Fox that provision be made for the respondents, in alignment with the promise made to them at the family meeting.

6      Rule 1.2.

[19]              Although the respondents have been occupying the properties largely without payment,7 they submit they have done so in reliance on the promise made to them by Mr Fox and that any shortfall “owing” under the unsigned deed could still be paid.

[20]              They submit that Mrs Fox’s will, created in 1973, was never updated to take into account the whāngai relationship between Mrs Fox and the respondents. This relationship is said to entail a moral obligation on the part of the estate to provide for them.

[21]              I emphasise that the allegations by the respondents relating to the views of Mrs Fox, and that Mr Fox granted occupation in return for there being no contest to the will, are denied in the various affidavits filed in support of the application.8

[22]              The problem for the respondents is that they have taken no steps to oppose the will or to otherwise make a claim to the properties they now occupy. It is hard to see how they could. On the other hand, Mr Fox is obliged to implement Mrs Fox’s testamentary instructions by getting in the assets of the estate and distributing them. Of course, as was attempted here, the beneficiaries can agree among themselves to distribute the assets of the estate differently to the way provided for in the will. But that does not affect the validity of the will. Indeed, if Mr Fox had made the agreement alleged and referred to in [16], he would have been in breach of his duty as executor and the agreement could not have been binding on the estate.

[23]              The matters raised in opposition by the respondents cannot operate to prevent Mr Fox from carrying out his duty as the executor and administrator of Mrs Fox’s estate.

[24]              The Court is left with the situation that an executor of an estate seeks the Court’s assistance to carry out his duty under the will. The assistance is clearly necessary. The respondents have taken no steps which might persuade the Court to, at least, postpone giving assistance. Their factual allegations are met by the executor

7      Mr Fox acknowledges that Mr Nigel Fox has paid a total of $8,700 for his occupation of the property since late 2012.

8      The reply affidavit of Kenneth John Fox sworn 6 November 2017 at 13; the reply affidavit of Heather Gaynor Fox sworn 6 November 2017 at 9-10.

with formal denials. They have no legal right to continue to occupy the lands in question. They are unlawful occupiers within the meaning of r 13.1.

Decision

[25]I grant the application and make orders as follows:9

(a)The first respondent, Clarence Nigel Fox, is ordered to vacate and give up possession of the estate’s property at 5 Mabbett Lane, Waimauku (CT/Identifier NA37D/743) to the applicant within 28 days of the date of this order; and

(b)The second respondent, Carl George Lawrence Fox, is ordered to vacate and give up possession of the estate’s property at 54 Riverhead Road, Kumeu (CT/Identifier NA101B/729) to the applicant within   28 days of the date of this order.

Costs

[26]              The estate is entitled to costs. The respondents are to pay costs on a 2B basis. In the event of disagreement, these may be fixed by the Registrar.

Brewer J

9      I draw the parties’ attention to r 13.9.