Garnham v Scott - [2018] NZHC 2536

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-448

[2018] NZHC 2536

UNDER sub-pt 5 of pt 6 of the Property Law Act 2007 and pt 12 of the High Court Rules 2016

IN THE MATTER

of the Estate of Mary Patricia Scott-Smith

AND

IN THE MATTER

of an application for the sale and division of property and other orders

BETWEEN

MICHAEL GARNHAM

Plaintiff

AND

PAUL SCOTT and KESINEE SCOTT

Defendants

Hearing: 21 September 2018

Appearances:

Mr M Garnham for himself (in his capacity as executor of the estate of the late Mrs Mary Patricia Scott-Smith)

Ms K Hoult for Ann Scott

Judgment:

28 September 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] The plaintiff is the executor of the estate of the late Mary Patricia Scott-Smith. In this proceeding he sues the deceased’s son, Mr Paul Scott, and Mr Scott’s estranged wife, Mrs Kesinee Scott. He applies for summary judgment pursuant to pt 12 of the High Court Rules 2016. He seeks orders pursuant to sub pt 5 of pt 6 of the Property Law Act 2007 for the sale of a property in Strathmore, Wellington registered in the names of the deceased, Mr Scott and Mrs Scott as tenants in common in equal

GARNHAM v SCOTT and SCOTT [2018] NZHC 2536 [28 September 2018]

shares, on terms which would enable him, as the executor of the estate, to retain the entire net proceeds of sale.

[2] In my judgement, the plaintiff is entitled to the orders he seeks (with relatively minor adjustments).

[3] The plaintiff commenced this proceeding on 21 June 2018. Service of the originating documentation proved troublesome. Service on Mr Scott was effected by personal service in the usual way on 27 June 2018. However, Mrs Scott lives abroad and the plaintiff had no knowledge of her exact whereabouts. He applied for and obtained an order for substituted service. The Court’s order required him to serve her by three means — first by service on Mr Scott; second by service at her last known address in this country being the property which is the subject of this proceeding; and third by a post on her facebook page. By these methods, substituted service was effected by 1 August 2018. Neither Mr Scott nor Mrs Scott has entered an appearance or taken any other step in the proceeding.

[4] In his submissions, Mr Garnham took the Court through the principles which apply to applications by plaintiffs for summary judgment.

[5] However, this, as I have already said, is a case in which the defendants have not entered appearances. In such circumstances, it is clear, in my view, that it is to be treated as an application for judgment by default pursuant to sub-pt 2 of pt 15 of the Rules.

[6] A question arises as to the category of default judgment being sought. To expand briefly, the Rules distinguish between two categories of default judgment:

(a)where the plaintiff seeks…

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 Garnham v Scott

Details

AGLC: Garnham v Scott [2018] NZHC 2536
Case: [2018] NZHC 2536
Decision Date: 28 September 2018

CaseChat Overview and Summary

In this proceeding, the plaintiff, Michael Garnham, as the executor of the estate of Mary Patricia Scott-Smith, sought orders for the sale and division of a property in Strathmore, Wellington, registered in the names of the deceased, Mr Paul Scott, and Mrs Kesinee Scott as tenants in common. The plaintiff sought to retain the net proceeds of the sale. The defendants, Mr Scott and Mrs Scott, did not enter an appearance or take any steps in the proceeding. The plaintiff applied for summary judgment, which the court treated as an application for judgment by default due to the defendants' lack of appearance. The plaintiff had to prove the amount to which he was entitled, generally by affidavit, as the claim involved determining the quantum of the defendants' indebtedness to the deceased's estate. The court accepted the plaintiff's affidavit evidence that Mrs Scott-Smith had transferred a significant proportion of her wealth to Mr and Mrs Scott while in Thailand, which called for an explanation. The court found that Mr and Mrs Scott were indebted to the deceased's estate for a substantial amount and that they should be regarded as constructive trustees for Mrs Scott-Smith's estate of their legal interests in the property. The court made orders for the sale of the property and for the net proceeds of sale to be paid to the plaintiff, to be held in his trust account pending further order of the court or the Family Court.

The court also considered the issue of costs. The plaintiff sought costs on a 2B basis in respect of the proceeding. However, the court noted that a solicitor acting for himself in proceedings cannot recover costs, as determined by the Court of Appeal in McGuire v The Secretary for Justice. The court observed that there may be a distinction between a solicitor acting for himself in his personal capacity and a solicitor acting as the sole executor of an estate and the litigant. The court suggested that if the plaintiff wished to pursue his claim for costs, he could file a memorandum addressing the issue within fifteen working days, and the court would deal with it on the papers. Finally, the court mentioned that Mrs Hoult, counsel for Ann Scott, participated in the hearing by telephone, but did not make submissions, and indicated that her client neither supported nor opposed the summary judgment application.

Orders