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…

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 [2018] NZHC 3119
Case: [2018] NZHC 3119
Decision Date: 29 November 2018

CaseChat Overview and Summary

Sharon Bridget Raukara Hennessy applied to the High Court of New Zealand for an order to commence proceedings under the Administration Act 1969 to remove her brother, Albert Kevin Tama Hennessy, as an executor and trustee of their father's estate. The court was required to determine whether the application should proceed by way of originating application or if a statement of claim and statement of defence were necessary. The court considered that while there was a need for expedition, the originating application procedure should not be used as a shortcut for urgent cases. The court concluded that the issues were ill-defined without detailed pleadings and that the proceeding should not be commenced by originating application. Instead, the court suggested that the plaintiff could apply for an abridgement of the normal 25 working-day period to file a statement of defence or seek timetabling orders to reflect the urgency of the case.

The court's reasoning was that the procedure may be used where there is an opposing party but it is, in relation to contested proceedings, an exceptional procedure. The court observed that the procedure may be used where 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. The court also considered that 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 mal-administer the estate and, indeed, “waste” its resources. The court concluded that the issues, and the basis on which Mr Hennessy may contest his removal, were ill-defined and that the proceeding should not be commenced by originating application.
Leave to commence this proceeding by originating application pursuant to r 19.5 was declined.

Orders