Harbord v Cull HC Napier CIV 2003-441-292

[2007] NZHC 1951

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2003-441-292

CIV 2003-441-461

UNDER  Section 60 of the Administration Act 1969

IN THE MATTER OF     the ESTATE OF WILLIAM RICKY HARBORD

BETWEEN  MAUREEN PERCIVAL HARBORD Applicant

ANDIAN FREDERICK CULL Respondent

Hearing:         11 July 2007

Counsel:         M J Wenley for Ian Frederick Cull

Mrs M P Harbord in person (with Mr B Harbord as McKenzie Friend) Judgment:    20 July 2007 at 4:00pm

JUDGMENT OF WILLIAMS J

This judgment was delivered by

Hon. Justice Williams on

20 July 2007 at 4:00pm

pursuant to Rule 540(4) of the High Court Rules

……………………………..

Registrar/Deputy Registrar

Date: ……………………...

A        The order nisi in favour of Ian Frederick Cull is discharged.

BThe application for Letters of Administration of the intestate estate of the late William Ricky Harbord is granted to his mother Maureen Percival Harbord.

HARBORD ESTATE  HC NAP CIV 2003-441-292  20 July 2007

[1]      Mr William Ricky Harbord, the abovenamed deceased, died intestate at New

Plymouth on 1 March 2003.

[2]      In the years prior to his death he had a relationship with Sharyn Lee Mitchell, as a result of which two children have been born, Samantha Ella Mitchell born on 11

October 1995, and, as has been established by DNA testing since his death, Charis

Elizabeth Mitchell born on 2 May 2000.

[3]      On  8  May 2003  and  at  10  July 2003  respectively  Ms  Mitchell  and  Mr Harbord’s mother, Mrs M P Harbord, lodged caveats in relation to any application for letters of administration of the late Mr Harbord’s estate.  The caveat lodged by Ms Mitchell was on behalf of her elder daughter.

[4]      On 19 September 2003 Mrs Harbord applied for letters of administration of her late son’s estate.   Her accompanying affidavit exhibited a consent from her husband, the late Mr Harbord’s father, to her application.  The affidavit said that, in correspondence with Ms Mitchell’s solicitors, she had renounced any intention to apply for letters of administration herself.

[5]      The affidavit set out details of the estate.   Mrs Harbord said the principal asset was the house at 38 Mill Road, New Plymouth, in which Ms Mitchell and the children were living.  It was then said to be worth about $120,000 with a mortgage to the ANZ Bank of about $62,000.  The late Mr Harbord also owned a motor vehicle worth  $2,500-$3,500.There was  about  $4,000-6,000  in  a  bank  account,  most  of which has since been consumed in servicing the mortgage.   Ms Mitchell had apparently agreed to pay rent of $150 per week to Mr Harbord to meet the outgoings, but payments stopped shortly after Mr Harbord’s death leaving the bank account as the only avenue for payment.  This has apparently been exhausted and the mortgagee is now threatening mortgagee sale proceedings.

[6]      At that point, Mrs Harbord said Ms Mitchell’s solicitors were suggesting that letters of administration of the estate should be granted to a Mr Middleton, a New Plymouth solicitor.

[7]      Mrs  Harbord’s  application  did  not  proceed  at  that  point  because,  on

28 November 2003 Mr Registrar Earles said the application could not proceed on notice under R 665. The caveats would need to be withdrawn before any application could proceed or an order nisi sought under the Administration Act 1969 s 61.

[8]      Nothing formal further occurred in relation to Mr Harbord’s estate until, on

7 June 2007, a Mr Cull, another New Plymouth solicitor, applied ex parte for an order nisi that letters of administration of Mr Harbord’s estate be granted to him for the benefit of Mr Harbord’s two children until they attained the age of majority.  To enable that application to be made, Ms Mitchell withdrew her caveat on 29 May

2007.

[9]      Mrs Harbord was served with Mr Cull’s application and supporting affidavit on 30 June 2007, 12 days after Gendall AJ had, on an ex parte basis, made an order nisi for the grant of letters of administration to Mr Cull and directed Mrs Harbord, as caveator, to show cause why the order nisi should not be made absolute at the sittings in this Court in Napier on 11 July 2007.

[10]     At that hearing, Mr Wenley appeared on Mr Cull’s behalf to seek an order absolute, and Mrs Harbord appeared with her son Mr Brent Harbord to assist her, to seek an order in terms of her application and to oppose that of Mr Cull.

[11]     Mr Cull’s affidavit recounted the history of the matter but also included advice that Ms Mitchell consented to the grant of letters of administration to Mr Cull and that she intended to issue claims against the estate under both the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949, presumably on her daughters’ behalf and on her own.

[12]     Mr Cull advised that the government valuation  of  38  Mill  Road  is  now

$230,000 with the amount owing to the mortgagee standing at $57,267.32 as at 18

May 2007.  Mortgagee sale proceedings are, however, threatened as the account has fallen into arrears.  Mr Cull said that, if appointed, he would administer the estate on behalf of the beneficiaries entitled and would endeavour to ensure that the house be reserved as a place for the children to live and an asset for their future.

[13]     The submissions by Mr Brent Harbord  for his  mother  covered  desultory negotiations which have occurred between the parties over the past four years and asserted that Mrs Harbord, as the late Mr Harbord’s mother, was the person best placed to administer the estate on behalf of her son, Ms Mitchell and her granddaughters.   The submissions also noted the modest size of the estate and expressed concern at the erosion of the assets which would inevitably occur were a professional trustee, such as Mr Cull, appointed.

[14]     The situation was, therefore, that at the hearing the Court was faced with competing applications for letters of administration of the late Mr Harbord’s estate, with that by Mr Cull having advanced to an order nisi, as s 61 requires, on an ex parte basis.  Though the possibility of the Public Trustee’s appointment was raised at the hearing, there was no application to that effect.   Neither applicant was cross- examined.

[15]     Pursuant to the Administration Act 1969, s 6, this Court has a discretion as to the person to whom administration of an intestate estate is to be granted.   Section

6(1) makes clear that the Court is required to have regard to the “rights of all persons interested in the estate of the deceased person”.

[16]     As regards the late Mr Harbord’s estate, the evidence is equivocal as to whether Ms Mitchell and he were living in a de facto relationship at the date of his death.  If such is proved to have been the case, she may be entitled to share in his estate (Administration Act 1969, s 77) but, whilst that may be of importance as far as distribution is concerned – and the forecast claims need to be taken into account in that respect – for the purposes of administration of the late Mr Harbord’s estate, Ms Mitchell must be taken to have renounced whatever rights she may have in that regard.

[17]     `That being the case, and the late Mr Harbord’s children being minors, it would appear that the whole of the estate is to be held on trust for the children (subject to Ms Mitchell’s position being established).

[18]     Mrs Harbord is, however, the person with the principal reason to administer her late son’s estate.  The learned authors of Cain and Curran Dobbie’s Probate and Administration Practice (4th ed 1986, para 345, p 215) made clear in reliance on long standing authority that the Courts do not as a general rule grant administration to a person without an interest in the estate but here, at least by analogy and by her personal wishes, Mrs Harbord’s application for the grant to her of letters of administration is to be preferred to that by Mr Cull.

[19]     Further, the learned authors of Dobbie make the point (para 355, p 227) that where the next of kin in an estate of minors “as a general rule, failing a testamentary guardian, the minor should elect his nearest relation as his guardian to take administration for his use and benefit”.   Ms Mitchell having renounced whatever may be her rights in that regard, Mrs Harbord is the beneficiaries “next nearest relation”.   Those authorities, too, indicate that Mrs Harbord’s application for appointment should be preferred.

[20]     That is not, of course, to say that Mr Cull is not well motivated or qualified and experienced to administer the late Mr Harbord’s estate and would not conduct the administration fairly and impartially, but his services will come at a cost to an already modest  estate and, having regard to that  and  his  acknowledged  lack  of involvement in the matter to date,  the Court takes the view that his application for appointment should not be granted.  The availability of his legal knowledge to the estate will be met by the fact Mrs Harbord has solicitors acting for her but chose to argue this matter both personally and through her son.

[21]     In those circumstances, the order nisi in Mr Cull’s favour will be discharged and there will be an order granting letters of administration of the intestate estate of the late William Ricky Harbord to his mother Maureen Percival Harbord.

[22]     It is assumed that no questions of costs will arise but, if the assumption is misplaced, the parties may deal with that aspect of the matter by memoranda.

………………………………..

WILLIAMS J.

Solicitors / Parties:

Billings Solicitors (Ian F Cull), P O Box 243, New Plymouth

Nicholsons Solicitors (Roger Mori) P O Box 68, New Plymouth

Copy for:

Mrs M P Harbord, Flat 3, 509 Queen Street East, Hastings

Civil Registry, High Court Napier. Registrar J Earles