Hennessy v Hennessy - [2021] NZHC 1198

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-454-000043

[2021] NZHC 1198

IN THE MATTER of the estate of Edward Brendon Hennessy

UNDER

the Administration Act 1969

BETWEEN

SHARON BRIDGET RAUKURA HENNESSY

Plaintiff

AND

ALBERT KEVIN TAMA HENNESSY

Defendant

Hearing:
8 March 2021

Supplementary submissions 24 May 2021

Appearances:

D I Sheppard for Plaintiff

Judgment:

27 May 2021

JUDGMENT OF COOKE J

[1] By a statement of claim dated 5 July 2019 the plaintiff seeks orders under s 21 of the Administration Act 1969 that her brother, the defendant be removed as a trustee and executor of the estate of their father leaving her as sole trustee and executor.

Background

[2] Proceedings were originally commenced by way of a without notice application for leave that they be permitted to be commenced by originating application under Part 19 of the High Court Rules 2016. That leave was declined on the basis that the affidavits that had been filed demonstrated that the matters were contested, there was a degree of hostility and that there was accordingly a need for the more extensive procedures involved in resolving disputes of that kind.1

1 Hennessy v Hennessy [2018] NZHC 3119.
HENNESSY v HENNESSY [2021] NZHC 1198 [27 May 2021]

[3] That has led to the commencement of these separate proceedings by way of statement of claim. The orders sought by the plaintiff are not opposed by the defendant, however. The matter has proceeded before me by way of formal proof. With hindsight, proceedings under Part 19 may have been satisfactory with the matter determined on the papers. But the lack of opposition to the orders was not apparent at the time of the application was first made to the Court as the defendant had not been served. This may have been a situation where an application for leave under r 19.5 could have been included in an originating application that was served on the defendant, together with consents from the affected beneficiaries which would have allowed what became to be an unopposed matter to be determined on the papers.

[4] This proceeding has now been commenced as an ordinary proceeding by way of statement of claim. Strictly speaking the proper alternative to a Part 19 proceedings was a proceeding under Part 8, Rule 18.1 provides that proceedings under that Part include “the determination of questions that arises in the administration of an estate or trust …”.2 Proceedings under that Part are also commenced by statement of claim, but they are required to be commenced by applications for directions as to service and representation.3 Part 18 involves a more streamlined procedure than an ordinary proceeding.

[5] It is important not to get too distracted by procedural niceties, however. There are now less stark differences between the different Parts of the rules.4 The Rules must be interpreted and applied with the objective of securing the just, speedy, and inexpensive determination of proceedings under r 1.2. The…

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 Hennessy v Hennessy

Details

AGLC: Hennessy v Hennessy [2021] NZHC 1198
Case: [2021] NZHC 1198
Decision Date: 27 May 2021

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, considered the case of Hennessy v Hennessy, where Sharon Bridget Raukura Hennessy sought to remove her brother, Albert Kevin Tama Hennessy, from his position as trustee and executor of their father's estate. The plaintiff aimed to become the sole trustee and executor, in accordance with their father's will, which divided the estate equally among the five siblings. The primary asset was a property in Levin, sold in 2018 for $319,109.71, which remained in the estate solicitor's trust account. The defendant, however, opposed the distribution of the estate, citing unresolved financial obligations and personal animosity towards his siblings.

The court needed to determine whether the defendant's refusal to cooperate with the estate's distribution, despite being fully capable and willing to do so, was justified. The judge considered the relevant factors, including the testator's wishes, the interests of the beneficiaries, and the expediency of removing the defendant. The court found that the defendant's actions were not in the best interests of the beneficiaries, as they prevented the estate from being distributed according to the will. Furthermore, the defendant had not taken any steps to address the alleged financial obligations, despite being served with the proceedings.

Based on the evidence, the court ruled that the defendant's removal as executor and trustee was appropriate. The court granted the plaintiff's request and ordered the defendant's removal, leaving the plaintiff as the sole trustee and executor. Additionally, the court awarded costs of three days under category 2, plus reasonable disbursements, to be fixed by the Registrar. However, the court declined to order the defendant's costs to be deducted from his share of the estate, as it found no jurisdiction to do so. Instead, the plaintiff could address the defendant's liability in her capacity as administrator.

Orders