Hennessy v Hennessy

[2018] NZHC 3119

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2018-454-108

[2018] NZHC 3119

UNDER

section 19 of the Administration Act 1969

BETWEEN

SHARON BRIDGET RAUKARA HENNESSY

Applicant

AND

ALBERT KEVIN TAMA HENNESSY

Respondent

Hearing:	On the papers
Counsel:	G J Woollaston for Applicant
Judgment:	29 November 2018

JUDGMENT OF CLARK J

Introduction

[1]    Sharon Hennessy applies, without notice, for an order to commence by way of originating application a proceeding under the Administration Act 1969 seeking to remove her brother, Albert Hennessy, as an executor and trustee of their father’s estate. Although the application to commence by way of originating application has been filed without notice the originating application itself is on notice.

Procedure by way of originating application?

[2]    Some applications to the Court must be made by originating application. The originating application in this case is made in reliance on s 19 of the Administration Act. The Administration Act is not one of the enactments listed in r 19.2. The court may, nevertheless, permit any proceeding to be commenced by originating application

HENNESSY v HENNESSY [2018] NZHC 3119 [29 November 2018]

if it is in the interests of justice to do so.1 In accordance with 19.5(1) the proposed originating application is accompanied by an application for permission. An application for permission may be made without notice.2

[3]    Typically, proceedings of a straightforward nature not requiring detailed pleadings, or interlocutory orders, and where the issues are both confined and clearly defined, are thought to be suited to the originating application procedure.3

[4]    Where, however, careful pleadings are needed to identify the precise nature of the issues, or interlocutory steps such as discovery may be required the originating application procedure is unlikely to be appropriate.4 The procedure may be used where there is an opposing party but it is, in relation to contested proceedings, an exceptional procedure.5

Assessment

[5]Probate in common form was granted on 12 October 2017.

[6]    I have considered the two affidavits filed in support of the application. The applicant herself, Sharon Hennessy, deposes to her father passing away on 6 August 2017 leaving a will dated 13 December 2016. The principal asset in Mr Hennessy’s estate is a property at Levin. The property has been sold for the sum of $319,109.71. An estate report has been  prepared  by  estate  solicitors,  Cullinane  Steele  Law.  Ms Hennessy is content with the proposed distribution in the report and believes it accords with the obligations of the executors and trustees and is in furtherance of her late father’s will.

[7]    Ms Hennessy confirms that, in applying for and obtaining probate, she and the respondent filed affidavits certifying they would discharge the trusts and administer their father’s estate in a proper manner.

1      High Court Rules 2016, r 19.5(1).

2      Rule 19.5(2).

3      Hong Kong and Shanghai Banking Corp Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [22]–[26].

4 At [26].

5 At [26].

[8]    Ms Hennessy describes the relationship between the respondent and the remaining beneficiaries (family members) under the will as, at best, difficult. Judging from the copies of the written communications between the parties “difficult” seems somewhat of an understatement. I do not propose to engage in the evidence which, to this point, is filed on behalf of the applicant only. The evidence, such as it is, strongly suggests that hostility between the trustees and beneficiaries is impeding the proper administration of the estate and the trust established under the will. The question is whether the substantive relief sought, namely an order removing the respondent as the executor of the estate, should proceed by way of originating application.

[9]    I have real doubts that the originating application route is the proper course. While there is a need for expedition it is well-established that the party should not treat the originating application procedure as a shortcut for urgent cases.6

[10]   The grounds on which the order for removal and further relief is sought are that the respondent has failed to further the due administration of the estate by acting in a manner which lacks good faith vis-à-vis the beneficiary classes and that he intends to maladminister the estate and, indeed, “waste” its resources. I agree due administration of the estate is necessary but I have concluded it will be necessary to proceed by way of statement of claim and statement of defence. Without detailed pleadings the issues, and the basis on which Mr Hennessy may contest his removal, are ill-defined.

[11]   The application is expressed to be pursuant to s 19 of the Administration Act. Under s 19 a court may call upon an executor to show cause why probate should not be granted to that executor or why administration should not be granted to the applicant or some other person. I am not certain s 19 that is the correct statutory basis for the application. Although the applicant does not refer to s 21 of the Administration Act, it is s 21 which provides the jurisdiction to remove an administrator and it is removal which the applicant apparently seeks. Further, while the originating application and the without notice interlocutory application are made under s 19 of the Administration Act the affidavits seem to be filed under the Trustee Act 1956.

6      Hong Kong and Shanghai Banking Corp Ltd v Erceg, above n 3, at [26].

[12]   In summary, it is clear the core facts will be disputed and while prompt resolution is highly desirable I am not satisfied it is in the interests of justice to allow the proceeding to be commenced by originating application.

[13]   I note that a plaintiff faced with a situation of sufficient urgency may apply for abridgement of the normal 25 working-day period in which to file a statement of defence. Given the defendant is on notice of the originating application, and the applicant’s objective and the orders she seeks, it may be that such an application is appropriate. Beyond that very general observation I make no further comment.

[14]   I also observe it may be open to the plaintiff to seek timetabling orders that reflect the urgency of the case if indeed that is established.

Result

[15]   Leave to commence this proceeding by originating application pursuant to     r 19.5 is declined.

Karen Clark J

Solicitors:

Jacobs Florentine Lawyers, Palmerston North for Applicant