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…

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 Gampell v Gampell

Details

AGLC: Gampell v Gampell [2019] NZHC 2058
Case: [2019] NZHC 2058
Decision Date: 21 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge P J Andrew heard the case of Gampell v Gampell, involving the estate of the late Galina Nicholaevna Griffin. The plaintiff, Melida Nicholaevna Gampell, sought the removal of both herself and her brother, the defendant, Viennamin Gampell, as administrators of the estate due to disputes that have impeded the administration of the estate. The plaintiff argued that it was expedient to replace them with an independent solicitor, Vicki Ammundsen. The defendant opposed the summary judgment application, contending that the proposed orders were not cost-effective, would not expedite matters, and were not necessary to finalise the estate.

The court considered the principles of summary judgment, particularly the requirement that the plaintiff demonstrate that the defendant has no defence to the claim. The court also examined the principles for the exercise of the court's powers under Section 21 of the Administration Act 1969, which emphasise the duty to see estates properly administered and trusts properly executed.

The court concluded that the plaintiff had established that the defendant has no defence to her claim for the removal of both administrators and their replacement with an independent administrator. The level of incompatibility between the parties was such that the proper administration of the estate was seriously affected. The court found that the appointment of an independent administrator was the most suitable, practical, and efficient means of advancing the interests of the estate and the beneficiaries. The court appointed Vicki May Ammundsen as the new administrator of the estate of Galina Nicholaevna Griffin and ordered that her reasonable fees be met from the estate.

The court granted the plaintiff's summary judgment application and awarded costs to the plaintiff on a 2B basis, together with disbursements as fixed by the Registrar. These costs and disbursements were also to be met from the estate.

Orders