Hoeberechts v Sprott - [2018] NZHC 2818

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-0960 [2018] NZHC 2818

UNDER Section 21 of the Administration Act 1969

IN THE MATTER

of the estate of THOMAS JAMES SPROTT, probate of which was granted under

CIV-2014-484-8127 on 30 June 2014; the Estate of ETHEL MARION SPROTT, probate of which was granted under

CIV-2014-484-8126 on 30 June 2014, and the Sprott Family Trust and the Rodleigh Family Trust

BETWEEN

LINDSAY ANNE HOEBERECHTS (nee

SPROTT) Plaintiff

AND

ADRIAN JAMES SPROTT Defendant

Hearing:
Further
Submissions:

15 October 2018

19 October 2018 and 24 October 2018

Appearances:

V Bruton QC for the Plaintiff
T J G Allan and K M Wakelin for the Defendant

Judgment:

31 October 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 31 October 2018 at 12.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
P Brown, Auckland
V Bruton QC, Auckland
Grove Darlow, Auckland

HOEBERECHTS v SPROTT [2018] NZHC 2818 [31 October 2018]

[1] The defendant applies for further particulars of the plaintiff's amended statement of claim.

The parties

[2] The plaintiff (Lindsay) and the defendant (Adrian) are two of the three children of the late Thomas James Sprott ("Jim Sprott") and Ethel Marion Sprott ("Marion Sprott"). Jim Sprott and Marion Sprott had another daughter, Alison, but she is not a party to this proceeding.

[3] Marion Sprott died on 31 October 2008. She made certain gifts of jewellery, art, and chattels to each of her three children, and gave Jim Sprott the use of other articles of personal, domestic, or household use during his lifetime. She gave the residue of her estate to Jim Sprott.

[4] Jim Sprott died in April 2014, and probate of his will was granted to Adrian and Richard John Nowacki, Scientist, of Auckland, on 30 June 2014. Jim Sprott left his net estate to his children in equal shares.

[5] Adrian and Alison live in Auckland, and Lindsay lives in Vancouver, Canada. Lindsay says that her parents' estates have not been properly administered in accordance with their last wills.

Lindsay's Court proceeding – steps to date

[6] In May 2017 Lindsay issued this proceeding, seeking orders removing and replacing Adrian and Mr Nowacki as administrators of the two estates, and appointing William Malcolm Patterson as administrator. Lindsay also sought damages from Adrian in an amount to be quantified, together with interest and costs, and orders directing the defendants to provide her with all information they might hold relating to two family trusts said to be associated with Jim Sprott and/or Marion Sprott, namely the Sprott Family Trust, and the Rodleigh Family Trust.

[7] Following the issue of the proceeding, Mr Nowacki was given leave to retire as a trustee in the estate. His name has now been removed as a defendant in the proceeding.1

[8] An interlocutory application to remove Adrian as an executor and trustee was heard on 31 July 2018.…

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 v Sprott

Details

AGLC: Hoeberechts v Sprott [2018] NZHC 2818
Case: [2018] NZHC 2818
Decision Date: 31 October 2018

CaseChat Overview and Summary

The proceeding was brought by Lindsay Hoeberechts against her brother, Adrian James Sprott, in relation to the administration of their parents' estates. Lindsay sought, inter alia, an order removing Adrian as administrator of the estates, and damages for the losses she claimed to have suffered because of Adrian's alleged breaches of his duties as an administrator of the estates. Adrian applied for further particulars of Lindsay's amended statement of claim. In this judgment I consider whether particulars should be given in respect of certain allegations in Lindsay's amended statement of claim, and make orders in relation to the further conduct of the proceeding. I conclude that particulars should be given in respect of the following allegations: (i) the date on which it is alleged that failure by Adrian to sell the property first constituted a breach of trust on his part; (ii) the date by which the finance condition referred to in Lindsay's amended statement of claim was required to be met; (iii) the date by which it is alleged Adrian should have provided Lindsay with the detailed accounts referred to in the amended statement of claim; and (iv) the amount which Lindsay claims to have borrowed since 8 July 2015 to pay her legal costs and her daughter's university fees, and the amount of interest on those borrowings. I decline to order further particulars in respect of the other allegations in Lindsay's amended statement of claim. I also decline to order increased or indemnity costs for Adrian, but order that he is to be awarded costs on a 2B basis. I direct that Lindsay file and serve a further amended statement of claim by 28 November 2018, and that Adrian file and serve his statement of defence to that further amended statement of claim by 19 December 2018. I direct that the Registrar is to allocate a telephone conference, for the first practicable date after 22 February 2019, for the purpose of setting a close of pleadings date, giving directions for the completion of evidence, chronologies and an agreed bundle of documents, and allocating a fixture for the trial of the proceeding.

Orders