Hoeberechts (nee Sprott) v Sprott - [2019] NZHC 1236

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-960

[2019] NZHC 1236

UNDER the Administration Act 1969 section 21

IN THE MATTER OF

the estate of THOMAS JAMES SPROTT, the estate of ETHEL MARION SPROTT, the SPROTT FAMILY TRUST and

the RODLEIGH FAMILY TRUST

BETWEEN

LINDSAY ANNE HOEBERECHTS (nee SPROTT)

Plaintiff

AND

ADRIAN JAMES SPROTT

Defendant

Hearing: 27 May 2019

Appearances:

V Bruton QC for the Plaintiff T J Allan for the Defendant

Judgment:

27 May 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Priscilla Brown, Auckland, for the Plaintiff
Grove Darlow (T J Allan), Auckland, for the Defendant

Counsel:
Vanessa Bruton QC, Auckland, for the Plaintiff

HOEBERECHTS (nee SPROTT) v SPROTT [2019] NZHC 1236 [27 May 2019]

[1] The defendant applies to strike out parts of the plaintiff’s statement of claim. The defendant originally applied to strike out parts of the plaintiff’s second amended statement of claim. The plaintiff has, in response, filed a third amended statement of claim and the defendant has in turn filed an amended application to strike out. The third amended statement of claim makes some minor amendments to the second amended statement of claim. It addresses one of the points raised by the defendant. The defendant originally pursued three points, but there are only two matters left for my decision.

[2] The plaintiff, Lindsay Hoeberechts, and the defendant, Adrian Sprott, are two of the children of the late Jim Sprott, a well-known industrial chemist. There is another daughter, Alison. This case concerns the administration of Jim’s estate and the estate of Marion, his wife, who died before Jim. The main asset of the estates is a residential property in Combes Road, Remuera, Auckland.

[3] Adrian is one of the executors of his father’s estate. He lives in Auckland, as does Alison. Lindsay lives in Vancouver, British Columbia, Canada.

[4] She contends that the executors have delayed in selling the Combes Road property. Lindsay’s claims cover several matters, but importantly she seeks:

(a)Full accounting of all income and expenditure for assets and liabilities of the estate.

(b)An order that Adrian account for any executor’s fees that he ought not to have paid himself.

(c)What she calls an order (but it is more a declaration) that the defendant and his co-executor ought to have obtained legal, valuation and marketing advice and listed Combes Road for sale within a reasonable time, being no later than 8 July 2015 or the spring of 2016, and Adrian remained in breach of trust by failing to sell the property.

(d)An order removing Adrian as executor and trustee of the estate.

(e)Damages which have still to be quantified.

[5] Jim died on 15 April 2014. Probate of his will and a codicil was granted on 8 July 2014. Marion died in 2008, but probate of her will was not granted until 8 July 2014. For present purposes it is not necessary to go into her will in…

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 Hoeberechts (nee Sprott) v Sprott

Details

AGLC: Hoeberechts (nee Sprott) v Sprott [2019] NZHC 1236
Case: [2019] NZHC 1236
Decision Date: 27 May 2019

CaseChat Overview and Summary

Lindsay Hoeberechts brought claims against Adrian Sprott, one of the executors of her father's estate, concerning the administration of the estate and the sale of a property in Remuera, Auckland. Adrian applied to strike out certain parts of Lindsay's third amended statement of claim, which he claimed were insufficiently particularised. The central issue was whether Lindsay had adequately pleaded the time when Adrian was alleged to have breached his duty to sell the property and the time for complying with a finance condition on the purchase of a property in Vancouver. Lindsay argued that the executors had delayed in selling the property, resulting in her being unable to purchase another property in Vancouver. She sought damages and other relief for the alleged breach of trust.

The court found that Lindsay had adequately pleaded the time when Adrian was alleged to have breached his duty to sell the property, as she had specified a date range from July 2015 through to the spring of 2016. The court noted that the case involved an ongoing breach of trust, and therefore it was not possible or sensible to require Lindsay to specify any one date within that period as being the date of breach of trust on which she relied. The court also found that Lindsay had adequately pleaded the time for satisfaction of the finance condition, as she had pleaded that there was not an express date for satisfaction of the finance condition, and that meant that finance would have to be obtained within a reasonable time. The application to strike out was dismissed, and Lindsay was awarded costs on a Category 2 basis.

Orders