Jackson v Jackson

[2016] NZHC 471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000106 [2016] NZHC 471

IN THE MATTER OF

the Estate of Ivy Jackson

BETWEEN

RAYMOND BARRY JACKSON Applicant

AND

STEPHEN JAMES JACKSON First Respondent

LINDA MARGARET JACKSON Second Respondent

Hearing:	On the papers
Judgment:	18 March 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 18 March 2016 at 12 noon

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

JACKSON v JACKSON [2016] NZHC 471 [18 March 2016]

Introduction

[1]      Raymond Jackson has applied without notice for leave to bring applications under ss 6 and 19 of the Administration Act 1969 by way of an originating application and for leave to file the originating application in the Auckland registry.

[2]      The proposed respondents, Stephen and Linda Jackson, live in Australia.  The cost of formal service seemed disproportionate for this preliminary procedural step. Further, this application together with the proposed application and affidavit were emailed to Stephen Jackson at his last known email address.  I accept that in these circumstances the application is properly brought without notice and does not require service.

[3]      The  proposed  application  concerns  the  will  left  by  Raymond  Jackson’s mother, Ivy Jackson, who died on 6 April 2015.  The will excluded him (and other members of Mrs Jackson’s family) from his mother’s estate in favour of his brother, Stephen Jackson and Stephen’s wife, Linda Jackson.   They were also named as executors under the will.

[4]      Raymond Jackson is concerned about the circumstances in which the will was executed, the application of the house sale proceeds and the application of the funds in Mrs Jackson’s bank account at the time of her death.  Mrs Jackson executed a will in 2012 which distributed her estate evenly among her three children.  In early

2014 she contemporaneously appointed Stephen Jackson as her attorney under an enduring power of attorney, executed a sale and purchase agreement in relation to her house for $669,996 and executed the new will that provided for the proceeds of the sale to go to him and Linda Jackson.   That will expressly excluded Raymond Jackson and his sister (who has since died).

[5]      Raymond Jackson asserts that, even allowing for the costs of care in the last year of Mrs Jackson’s life, the sale proceeds could reasonably have been expected to have been at least $650,000.  Yet, when Mrs Jackson died 15 months later her bank account  had  less  than  $100,000  in  it.    When  Raymond  Jackson  expressed  his concerns to the executors they advised, through their solicitor, that they are “not

interested in applying for probate as there are technically no funds in the estate and all of the residuary estate has been distributed to the beneficiaries in accordance with the Last Will of Ivy Jackson”.

[6]      Because Stephen and Linda Jackson have declined to take any steps to apply for probate, Raymond Jackson has no means of having these issues addressed.  He therefore wishes to apply for orders that would allow him to administer the estate in place of the current executors and, in that capacity, address the issues that concern him.

An originating application?

[7]      An application for a grant of administration is made either without notice under r 27.4 (which would be inappropriate given the circumstances outlined above) or in solemn form under r 27.6.  The procedure for an application in solemn form is the same as for an ordinary proceeding, subject to the other rules in Part 27.  In his memorandum, Mr Butler, for Mr Jackson, submitted that commencement of ordinary proceedings would be inappropriate because it would involve the greater expense of a statement of claim, statement of defence, discovery, case management and a trial. For this reason he seeks leave to bring the proceeding by way of originating application under Part 19.

[8]      Rules  19.2  –  19.4  identify  the  categories  of  applications  that  may  be commenced by originating application.  An application for grant of administration is not one of them.  Under r 19.5, however, the court may, in the interests of justice, permit proceedings not mentioned in rr 19.2 – 19.4 to be commenced by originating application and allows such permission to be sought without notice.   I accept that ordinary proceedings would not be the most appropriate or cost effective form in which to bring the proposed application.  I am satisfied that the application should be brought by way of originating application and therefore grant leave for Raymond Jackson to do so.

Where should the application be filed?

[9]      Rule 27.10 requires any application filed under Part 27 to be filed in the Wellington registry.  Mr Jackson seeks leave to file the application in the Auckland registry on the basis that Mrs Jackson died in Auckland, her solicitors are based in Auckland, he lives in Kamo which is closer to Auckland than Wellington and the executors live in Queensland, which is closer to Auckland.

[10]     Although r 27.10 appears to apply to applications made in solemn form it conflicts with r 27.6(3) which expressly states that Part 5 applies to applications made in solemn form.  Under r 5.25(1) a proceeding must be commenced by filing a statement of claim in the “proper registry of the court”.   Rule 5.1 identifies the “proper registry of the court for the purposes of rules 5.25 and 19.7”.   Rule 19.7 provides that an originating application is commenced when it is filed in the proper registry of the court as determined in accordance with rule 5.1 or when the court gives permission under r 19.5 (which I have done).  Under r 5.1 the proper registry in this case would be Auckland (because Stephen and Linda Jackson are not resident in New Zealand and that is the registry selected by Raymond Jackson).

[11]     Rule 27.10 has been in effect in its current form since June 2013.1    Before then applications under Part 27 were required to be filed in the registry nearest to where the deceased had lived or, if the deceased did not live in New Zealand, the registry nearest to where his or her property was situated.  Only if neither situation applied was the application required to be filed in Wellington.2     The purpose of requiring all  Part  27  applications  to  be filed in Wellington  was  to  increase the consistency and efficiency with which such applications could be processed. However, the wording of r 27.6(3) did not change with the amendment of r 2710.

[12]     For the reasons that follow I am satisfied that the effect of r 27(6)(3) prevails and that the effect of r 27.10 is limited to uncontested applications made without notice.  First, the practicalities of dealing with an application in solemn form suggest that, wherever an application is filed it would ultimately have to be heard in the court

closest to the defendant or to where the cause of action arose.   Were it otherwise,

1      High Court Amendment Rules 2013, r 4.

2      Rule 27.10(4) and (5).

parties to all such applications would be put to the expense and inconvenience of travelling to Wellington (there is no provision in r 27.10 for the transfer of applications in solemn form filed in the Wellington registry).  Requiring parties to be heard in Wellington would be contrary to r 1.2 under which the objective of the rules is the just, speedy and inexpensive determination of proceedings.

[13]   Secondly, when read together it is clear that separate regimes exist for applications made without notice and those made in solemn form.   Not only does r 27.6(3) provide that Part 5 applies to an application in solemn form brought under r 27.6, but, conversely, r 5.25(2)(a) provides that r 5.25(1) does not apply to “an unopposed application  under Part 27”.  If r 27.10(2) extended to applications in solemn form, it would have been unnecessary to retain r 27.6(3).

[14]     For these reasons I conclude that the correct registry for the filing of an application in solemn form falls to be determined by reference to r 5.25 rather than r 27.10(2).3

Conclusion

[15]     Leave is granted to bring the proposed applications by way of an originating application and for the application to be filed in the Auckland registry.

P Courtney J

3      In a similar situation in Re Estate of Cross [2015] NZHC 692 Venning J treated the matter as falling within Part 19 and therefore not subject to the requirement in r 27.6. This approach resulted in the same outcome but by a different route.