Jay v Gilbert

[2015] NZHC 1791

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2009-485-2354 [2015] NZHC 1791

IN THE MATTER

of the will and estate of COLIN

RUSSELL GILBERT

BETWEEN

BEVERLEY JAY Applicant

AND

GEOFFREY BRUCE GILBERT AND LAURICE DENISE GILBERT Respondents

Hearing:	29 July 2015
Counsel:	L H Pratley for Applicant Respondents in Person
Judgment:	31 July 2015

JUDGMENT OF SIMON FRANCE J

[1]      Section 44 of the Administration Act 1969 empowers a court to direct the administrators of an estate to exhibit on oath an inventory and account of the estate. The respondents are executors of their father’s estate.  In 2013 the applicant, who is another of the deceased’s children and a beneficiary under the will, asked the Court

for a s 44 order. The order was made by Registrar Earles on 27 May 2013.1

[2]      The   respondents   filed   documents   in   compliance   with   the   order   on

21 June 2013.  Thereafter, from the Court’s perspective, the matter was silent until on 27 March 2015 a further interlocutory application was filed.   The application relies upon s 44 of the Act and requests a further order requiring the respondents to

file certain information.

1      In the estate of Colin Russell Gilbert HC Wellington CIV 2009-485-2354, 27 May 2013.

JAY v GILBERT [2015] NZHC 1791 [31 July 2015]

[3]      A notice of opposition was filed, the primary thrust of which was that all the information had been provided.  After hearing from the parties I indicated the application would be declined with reasons to follow.

[4]      There were in my view three primary problems with the application.

[5]      The first concerns the scope of the orders sought.   There is little judicial consideration to date of s 44.   That is no doubt due to it being sparingly used or needed.  The purpose of the provision seems to be to confirm the role of the Court in assisting beneficiaries and others with an interest in the estate to obtain an up to date statement of the position of the estate.2   The nature of the information to be provided under s 44 is clarified to a certain degree by r 27.32 of the High Court Rules but there is still some flexibility.   For example, what is covered by the concept of an inventory is not addressed.   I accept the proposition in Reeves v Freeling that the Court has a discretion as to the nature of the inventory that will be accepted.3   That also suggests, as one would expect, that there is capacity for an applicant to return to the Court to request compliance with an order that has been made.

[6]      However, the present application goes well beyond that.  As an example, the first order sought is for production of all the invoices underlying all the payments made from the estate.   I have no doubt there was no obligation to provide these invoices initially.  Nor have I seen any material that might have caused the Court to require such documentation as part of its original order.   Any further application under s 44 must be limited to asking the Court to ensure the original order was complied with and is not a vehicle for challenging the actions of the executors.

[7]      A second example of exceeding the limits of s 44 are the several requests for orders requiring the executors to explain the reasons for various steps being taken, or

not taken. Again I do not see those as properly within the scope of s 44.

2      See, for example, the discussion of the available jurisdiction in Tiffin v Tiffin [1916] NZLR 656.

3      Reeves v Freeling (1812) 2 Phillim 56, (1812) 161 ER 1077.

[8]      Stepping   back   from   these   individual   requests   and   focusing   on   the

27 May 2013 order, I am satisfied, save in one respect, that the executors complied with their obligation.   The deficit was in complying with r 27.32(1)(b)(iii), which required the executors to identify whether receipts and disbursements were capital or revenue.  However, that oversight is not a matter which the present application seeks to remedy.

[9]      The second reason for declining the application is that much had happened subsequent to the documents being filed in June 2013 by the executors.  As a result of on-going requests, the respondents finally took legal advice.   There followed a more  focused  and  productive  exchange  between  solicitors  culminating  in  an important letter provided on behalf of the respondents in November 2013.   That letter appended a considerable amount of documentation, identified the total assets of the estate, identified the applicant’s share and the method by which it had been calculated, and provided payment of that amount with no conditions attached.  As I understand it the payment has been kept.

[10]     In these circumstances I do not consider it remained open to the applicant, some 15 months later, to seek to revisit the executors’ compliance with the court order of May 2013.   If there was dissatisfaction with compliance, a much more timely application was required.  Further, in my view the November letter provided all that could be reasonably expected.   If the applicant wished to challenge some actions of the executors, or seek an audit under the Trustee Act 1956, then a proper

application was required.4

[11]     The third reason I declined the application was because in fact almost all the information being sought had already been provided.  Indeed it appeared to me, and the hearing did not dissuade from this view, that much of the information had been provided some time previously.   It may not have been exactly in the format the applicant wished, but it had been provided.   Had the respondents not been representing themselves, this aspect would have given rise to serious consideration

of what costs orders were required.

4      Trustee Act 1956, s 83B.

Conclusion

[12]     For  the  reasons  given,  the  application  is  declined.    The  respondents  are entitled to reimbursement of any reasonable disbursements, with the amount to be

fixed by the Registrar if necessary.

Solicitors:

Lance Pratley Law, Wellington

Simon France J