Gemmell v Phillips

[2021] NZHC 2979

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-74

[2021] NZHC 2979

IN THE MATTER OF

The Estate of Thomas Gemmell

BETWEEN

TAIAWHIO TAMA GEMMELL, WEPIHA WAINOHU RANAPIA GEMMELL, WIREMU KINGI TE RANGITAKE TE TAU GEMMELL and POHIRI TAIMANA ROSE GEMMELL

Plaintiffs

AND

PADRE ANTHONY LIONEL PHILLIPS

First Defendant

AND

PHYLLIS PATRICIA ROSE GEMMELL

Second Defendant

Hearing:

3 November 2021

Appearances:

M J Wenley for Plaintiffs

R B Phillip for First Defendant
No Appearance or for Second Defendant

Judgment:

4 November 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                  This matter was called in the Associate Judge’s Chambers list on 3 November 2021. The case involves an application by the plaintiffs who are beneficiaries of the estate of their father, the late Mr Thomas Gemmell, who died intestate at Wairoa on 25 October 2008.

[2]                  The plaintiffs are seeking orders against the second defendant pursuant to s 21 of the Administration Act 1969 removing her as administrator of the estate and

GEMMELL v PHILLIPS [2021] NZHC 2979 [4 November 2021]

appointing another administrator (together with corresponding vesting orders), damages and costs.

[3]                  Against the first defendant, the plaintiffs are seeking a vesting order in respect of the property, either in their favour in equal shares or in any appointed administrator of the estate together with costs.

[4]The first defendant has entered a defence.

[5]The second defendant has taken no step in the proceeding.

[6]                  The plaintiffs have become increasingly frustrated by ongoing failures on the part of the first defendant to comply with interlocutory orders and directions made by the Court.

[7]                  Mr Wenley was good enough to prepare a table of the first defendant’s transgressions in this regard. It is unnecessary for me to go into detail. The short point is that on 12 October 2021, I made an order which I recorded in a minute the next day, acceding to Mr Wenley’s submission that the Court make an unless order in the terms sought by him in paragraph 9 of his memorandum for that conference.

[8]Paragraph 9 of Mr Wenley’s memorandum was in these terms:

Accordingly, the Plaintiffs seek an order pursuant to Rule 7.48 that the Court make an “unless” order striking out the First Defendant’s Statement of Defence and entering judgment for the Plaintiffs as particularised below with effect from 29 October 2021 unless, by 28 October 2021 [the first defendant provided certain particulars and further and better discovery].

[9]                  In his memorandum Mr Wenley went on to identify the judgment sought against the first defendant in the following terms:

The judgment sought is that:

(a)Against the First Defendant:

(i)the Court orders that the land in Record of Title HBF4/673 be vested in Taiawhio Tame Gemmell as Administrator of the Estate of Thomas Gemmell late of Carterton deceased …;

(ii)the First Defendant pay costs to the Plaintiffs on a 2B basis.

[10]It is common ground that the first defendant failed to comply with that order.

[11]              Apparently, on 28 October 2021, through his solicitors, he provided certain documentation to the plaintiffs’ solicitors, but that is not compliance with the directions.

[12]              For the first defendant, Mr Phillip did not seek to argue that the first defendant had complied with the Court’s order. He tells me that the first defendant is not an especially sophisticated litigant and may not have understood his obligations. He added that, as far as he is aware, no further documentation is available to discover. Finally he said that, to the extent that the first plaintiff has not filed a formal affidavit of documents, that can be rectified.

[13]              In short Mr Phillip said everything that could possibly be said on the first defendant’s behalf.

[14]              However, in my view, none of that constitutes an answer to the plaintiffs’ application. The Court only makes unless orders against the background of consistent and egregious failure to comply with orders or directions. There is no doubt that that description is fitting in this case. The first defendant is represented by solicitors and experienced counsel, and must be assumed to have understood his obligations. The first defendant’s failure to comply with the Court’s directions cannot now be rectified because the unless order took effect from the date of the breach.

[15]              On the face of things, the plaintiffs are entitled to the orders they seek. There is however a difficulty. For reasons explained below the Court is not in a position to grant the relief sought against the second defendant removing her as administrator and appointing a new administrator. It follows that the primary order sought against the first defendant vesting the property in the new administrator cannot take effect.

[16]              In the end the view I have reached is that the only practical option is for the Court to make a formal order striking out the first defendant’s statement of defence and entering judgment in the plaintiffs’ favour against him, but declining to grant any

particular remedy or deal with costs until the proceeding against the second defendant is disposed of.

[17]              That leaves the plaintiffs’ claim against the second defendant who, as already said, has not entered an appearance. As to this, the plaintiffs are entitled to proceed to a formal proof hearing in relation to their claim against the second defendant (this not being a liquidated money claim). That aspect of the case must be set down before a High Court Judge as it is not within the jurisdiction of an Associate High Court Judge.

[18]For those reasons I made the following orders or directions:

(a)The first defendant’s defence is struck out;

(b)Judgment is formally entered in the plaintiffs’ favour for liability against the first defendant;

(c)I decline to deal with the remedy or remedies to which the plaintiffs are entitled against the first defendant and instead adjourn that issue until the disposal of the plaintiffs’ claim against the second defendant;

(d)I make an order debarring the second defendant from entering a defence without first seeking leave to do so;

(e)I direct the Registrar to set the plaintiffs’ claim against the second defendant down for a formal proof hearing before a High Court Judge as soon as possible;

(f)Costs are reserved.

Associate Judge Johnston

Solicitors:

Willis Legal, Napier for Plaintiffs
Bramwell Bate, Hastings for First Defendant