Gampell v Gampell

[2019] NZHC 2058

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000488

[2019] NZHC 2058

IN THE MATTER OF

the estate of GALINA NICHOLAEVNA GRIFFIN, deceased

BETWEEN

MELIDA NICHOLAEVNA GAMPELL

Plaintiff

AND

VIENNAMIN GAMPELL

Defendant

Hearing:	13 August 2019
Appearances:	K E Swadling for Plaintiff Defendant in Person
Judgment:	21 August 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

GAMPELL v GAMPELL [2019] NZHC 2058 [21 August 2019]

Introduction

[1]    These are summary judgment proceedings relating to the estate of the late Galina Nicholaevna Griffin (the deceased). She was the sister of the plaintiff and defendant and died in Auckland in 2016.

[2]    Letters of administration were granted to the plaintiff and defendant in June 2017.

[3]    The plaintiff seeks the removal of both herself and her brother, the defendant, as the administrators of the estate pursuant to s 21 of the Administration Act 1969. She contends that disputes and conflict have arisen between the parties to the extent that they are unable to co-operate on the administration of the estate and that it is expedient in the circumstances to remove both of them from the office of administrator. By way of relief, she seeks an order that an independent solicitor, Vicki Ammundsen, be appointed as administrator in place of the parties.

[4]    The defendant opposes the summary judgment application on the grounds that the orders sought are not cost effective, will not speed matters up, and are not necessary to finalise the estate.

[5]    It is clear that the summary judgment jurisdiction is available to a plaintiff seeking the removal of an administrator.1 The critical issue I must determine is whether the plaintiff has established that the defendant has no defence and whether, in this case, there is any real doubt or uncertainty on the matter.

Relevant legal principles

Summary judgment

[6]Rule 12.2(1) of the High Court Rules 2016 provides:

The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

1      See Crick v McIlraith [2012] NZHC 1290 at [22](j).

[7]The principles are summarised in Krukziener v Hanover Finance Ltd:2

[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at

341. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

[8]    In Gardner v Gardner, Associate Judge Osborne summarised the general principles of summary judgment.3 These include:

(a)Common sense, flexibility and a sense of justice.

(b)In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to determine and reject spurious defences or plainly contrived factual conflict. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other statements, or inherently improbable.

(c)In assessing a defence, the Court will look for appropriate particulars and a reasonable level of detailed substantiation. The defendant is under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the notice of opposition.

(d)In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences in certain factual matters if the lack of a tenable defence is plain on the material before the Court.

2      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.

3      Gardner v Gardner [2015] NZHC 2018 at [20].

(e)The need for judicial caution in summary judgment applications has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case.

Section 21 of the Administration Act 1969

[9]    In Farquhar v Nunns, Heath J set out the following guiding principles for the exercise of the Court’s powers under s 21 of the Administration Act:4

(a)The starting point is the Court’s duty to see estates properly administered and trusts properly executed.

(b)This jurisdiction involves a large discretion which is heavily fact- dependent.

(c)The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration, but ultimately the question is as to what is expedient in the interests of the beneficiaries.

(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty or unfitness need not be established.

(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.

…

(footnotes omitted)

[10]   That summary of relevant principles has been affirmed by the Court of Appeal in Tod v Tod5 and Frickleton v Frickleton.6

Factual background

[11]The estate comprises the following:

(a)A house property at 45 Hathelow Street (the Hathelow Street property);

4      Farquhar v Nunns [2013] NZHC 1670 at [13]; and Howarth v Howarth [2019] NZHC 898 at [18].

5      Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22].

6      Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154 at [29].

(b)The furniture and personal effects located at Hathelow Street as at the deceased’s date of date; and

(c)The balance of investment and bank assets that have been cashed up and are now in the trust account of the solicitors who have acted for the estate, the approximate value of which is $116,000.

[12]   Hathelow Street has remained vacant since the deceased’s death. Despite the parties signing a real estate agency agreement in October 2017, the property was not put on the market until very recently.

[13]   During the time since the deceased’s death (now more than three years), disputes have arisen between the parties relating principally to matters holding sentimental and emotional value. This includes a painting on the laundry door of the Hathelow Street property, being a painting made by the parties’ mother. The door was removed from the house but has since been reinstated. There have also been disputes about the whereabouts of certain costume jewellery and photos.

[14]   With the assistance of counsel, the parties met in May 2018 and reached an agreement on certain matters, including an interim distribution, the sharing of items of a sentimental nature (50/50) and the sale of the Hathelow Street property. However, to date, none of those agreements have been implemented. The defendant is no longer legally represented.

[15]   In email correspondence with the parties in April 2018, the solicitor for the estate noted that the administration of the estate is relatively straightforward and that “the parties just need to get on with the final distribution”. He also noted that:

The administration has stalled on the issue of sale of the deceased’s residence which is essentially the only remaining asset to be converted into cash to enable a distribution. … There is of course the issue of the division of the personal household and sentimental items which I suspect is the principal issue to be resolved before the final distribution, but it should not be impeding the realisation of the house property.

[16]   In 2018, the defendant filed a complaint against the estate’s solicitor with the New Zealand Law Society. That complaint is unresolved.

[17]   On 5 March 2018, the solicitor for the estate urged the parties to come to an understanding so that estate administration matters could be completed expeditiously. The solicitor repeated the view he had expressed in his previous report that he had no interest in prolonging the administration of the estate.

[18]   In August 2019, following the filing of these proceedings, the property was finally placed on the market for sale. The auction is scheduled for 29 August 2019, but the parties are yet to agree on a reserve price.

Analysis and decision

[19]   I find that the plaintiff has established that the defendant has no defence to her claim that both administrators should be removed pursuant to s 21 of the Administration Act and replaced by an independent administrator. I am left in no real doubt or uncertainty that the appointment of an independent administrator and the removal of the current administrators is what is expedient in the interests of the beneficiaries. The level of incompatibility between the parties is at such that the proper administration of the estate is seriously adversely affected. The removal of the administrators will be the most suitable, practical and efficient means of advancing the interests of the estate and the beneficiaries.7

[20]   I accept that there are some significant conflicts in the evidence which might ordinarily result in the Court refusing a summary judgment application. However, the competing perspectives of the parties and the undisputed fact that there has been inordinate delay in winding up the estate, including the fact that the major asset, namely the Hathelow Street property has been vacant for three years, mean that the summary judgment threshold has been made out on the facts of this case. I also note that, in his statement of defence, the defendant admitted that he and his sister, the plaintiff, are unable to agree as to how administration of the estate should proceed, including selling the Hathelow Street property.

[21]   With the assistance of counsel, the parties have attempted to resolve their differences, and this led to an agreement on critical matters such as an interim

7      See Crick v McIlraith, above n 1, at [18]; and J v T [2017] NZHC 3089 at [19].

distribution and placing the Hathelow Street property on the market. However, those agreements were reached more than a year ago and have, to date, never been implemented.

[22]   I commend the parties for having finally reached agreement to place the property on the market and to take steps to achieve that, but the risk of further disagreement and further delay must, as the plaintiff submits, be relatively high. Rather than incur further costs, I am of the view that the appointment of an independent administrator is more than likely to be the most efficient way of administering the estate and finalising its winding up. To the extent that the parties can agree on all outstanding issues, that will of course assist any independent administrator in the tasks that he or she has to complete.

[23]   The contention by the defendant that the parties, left to themselves, could relatively easily reach agreement on outstanding issues is not supported by the evidence and, in the circumstances here, lacks credibility. The lengthy delays to date clearly suggest otherwise. I further note that more than 12 months ago, then counsel for the defendant advised that there may be a need for the appointment of an independent administrator.

[24]   It is also apparent from the undisputed evidence that the parties’ disagreements relate to sentimental and emotional matters such as the painted laundry door. That door was removed from the Hathelow Street property at some stage but has now been returned. The disputes have not, in substance, been over financial matters since there is a clear and undisputed agreement that the parties are to share in the estate on a 50/50 basis. Despite the intervention of competent counsel, disputes about those sentimental issues remain. Goodwill is necessary to complete the administration of the estate; such goodwill is not evident on the undisputed facts here.

[25]   The threshold of expediency in terms of s 21 of the Administration Act does not require misconduct, breach of trust, dishonesty or unfitness on the part of the

administrators.8 It is enough that the mistrust of an administrator is antithetical to the effective management of the estate.9

[26]   The evidence in this case demonstrates that there has been substantial mistrust between the parties, the two administrators. In addition to interim agreements not being implemented, the parties continue to make allegations against each other of a serious nature, which are vehemently denied.

[27]   The removal of the current administrators and the appointment of a new, independent administrator will, in the terms of the orders I am going to make, result in the appointment of a new solicitor to act for the estate. It is obvious that the defendant has lost confidence in the current solicitor and I reject his submission that the estate’s solicitor should see matters through to conclusion. I note that the solicitor for the estate himself suggested sometime ago that it might be sensible that a new solicitor be instructed. However, again, the parties have not been able to agree on that matter.

[28]   I also accept the submission of the plaintiff that it is appropriate to appoint Ms Ammundsen as the new, independent administrator. She is independent of the parties and has no connection to either of them. She is known to the Court as a competent solicitor with more than 10 years in the areas of wills, trusts and estates. She has provided an affidavit to the Court with proposed terms of engagement as administrator. There is no reason to doubt that Ms Ammundsen will not discharge her obligations in a professional and efficient manner. As I have noted above, if the parties continue to co-operate on the question of the sale of the property that is likely to make Ms Ammundsen’s job much more efficient and straightforward.

[29]   The Hathelow Street property is to be auctioned shortly and, in all the circumstances, it is prudent that Ms Ammundsen be appointed as soon as reasonably practicable. The appointment of a solicitor nominated by the President of the Auckland District Law Society, an option canvassed by the plaintiff, is likely to take more time and, in the circumstances here, is not necessary.

8      Panhuis v Cooke [2019] NZHC 563 at [24].

9      van Goch v van Goch [2018] NZHC 2335 at [63].

Result

[30]I make the following orders:

(a)The plaintiff’s summary judgment application, dated 20 March 2019, is granted;

(b)Pursuant to s 21 of the Administration Act 1969, I remove the plaintiff and defendant as administrators of the estate of Galina Nicholaevna Griffin;

(c)I appoint Vicki May Ammundsen of Auckland, solicitor, to be the administrator of the estate of Galina Nicholaevna Griffin;

(d)The property at 45 Hathelow Street, Glenfield, comprised in the Certificate of Title NA14A1276, is vested in Vicki May Ammundsen as administrator; and

(e)The reasonable fees of Vicki May Ammundsen are to be met from the estate.

[31]   I also award costs to the plaintiff on a 2B basis, together with disbursements as fixed by the Registrar. Those costs and disbursements are also to be met from the estate.

Associate Judge P J Andrew