Hickmott v Tate

[2018] NZHC 1091

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-0121 [2018] NZHC 1091

UNDER

Sections 51 and 68 of the Trustee Act 1956

IN THE MATTER OF

the Estate of KENNETH TATE

BETWEEN

SANDRA ELIZABETH HICKMOTT and VIVIENNE MAXINE TATE

Applicants

AND

BETTY MAE TATE, JANICE MAE

SARGENT as trustees of the ESTATE OF KENNETH TATE

Respondents

Hearing:	[On the papers]
Appearances:	Applicants, self-represented
Judgment:	17 May 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 17 May 2018 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Applicants:

HICKMOTT v TATE [2018] NZHC 1091 [17 May 2018]

[1]                  The applicants, beneficiaries under their late father’s will, seek to remove and replace the respondents as trustees of his estate, and to have this Court review the respondents’ decisions as trustees. The applicants contest the legitimacy of the respondents’ actions.

[2]                  The applicants, who are unrepresented, make interlocutory application without notice for leave to commence the proceeding by originating application under Part 19 of the High Court Rules. As Mackenzie J explained in Fisk v X:1

Part 19 was initially designed as an expedient for cases where there was in reality no opposing party. That narrow approach is no longer strictly applied, but pt 19 remains a procedure generally used for cases where it is not necessary to have full pleadings and interlocutory steps such as discovery for the proper determination of the issues.

[3]                  The applicants say the application relates to “a routine matter”.2 That is plainly not the case here: in particular, on the proposed originating application, the applicants contend one trustee (their mother) “wholly lacks capacity to make decisions as a trustee”, and the other (their sister) to have “failed to discharge her duties as a trustee”, and is additionally in breach of a contended agreement made in the Family Court to resign and appoint the Public Trust in her place. Those allegations will have to be fully pleaded, if appropriate for determination in this Court, and interlocutory steps likely required if the claim is contested.

[4]                  Thus it is also inappropriate to seek leave on a without notice basis,3 which the applicants additionally do to avoid “further undue delay” and “in the interest of justice”. The originating application procedure is an “exceptional procedure”, not to be used as a shortcut for matters of perceived urgency.4

[5]                  I therefore decline leave. If the relief sought remains pursued in this Court, I direct the applicants to pursue it in an ordinary proceeding, by filing a statement of

1      Fisk v X [2014] NZHC 2797 at [18] (citations omitted).

2      Being one of the criteria on which without notice applications may be made: HCR 7.46(3)(c).

3      Jones v H W Broe (1989) 5 PRNZ 206 (HC) at 207.

4      Hong Kong and Shanghai Banking Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [26].

claim.5 The applicants would be wise to engage legal advice and counsel, before embarking on that course.

—Jagose J

5      HCR 19.5A.