Johnston v Mapp - [2013] NZHC 700

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-259 [2013] NZHC 700

IN THE MATTER OF the estate of PHILIP ROLAND GORDON AND
IN THE MATTER OF Administration Act 1969

BETWEEN GLYNIS ROSE JOHNSTON Plaintiff

ANDVANESSA LOUISE MAPP Defendant

Hearing: 27 March 2013

Counsel: S F Gaines for Plaintiff
K Smith for Defendant

Judgment: 27 March 2013

ORAL INTERIM JUDGMENT OF THE HON JUSTICE KÓS

[1] This proceeding involves an application by siblings of the late Philip Roland Gordon for recall of the grant of letters of administration. The defendant is the recipient of those letters of administration. They were issued by the Court on
5 November 2010 on the basis that she was the deceased’s de facto partner.

[2] There has been substantial non-compliance by the defendant with orders made by the Court in October 2012 and February and March 2013. As a result, the issue before me today is whether to make orders by default and proceed to formal
proof on the substance of the plaintiff’s claim as against the defendant.

JOHNSTON v VANESSA LOUISE MAPP HC WN CIV 2012-485-259 [27 March 2013]

Claim advanced

[3] The deceased, Philip Gordon, died in England in May 2010. Prior to his death he had invested some $1.1 million in a property development scheme in Wellington. It involved a substantial residential property in Brougham Street, Wellington. The property was owned by a company called Bast Investments Limited as to 50 per cent and a Mr Miles Buckingham as to the other half. An acknowledgment of debt in Mr Gordon’s favour was executed by Bast and both proprietors agreed to an unregistered mortgage and the registration of a caveat to protect Mr Gordon’s interests.

[4] Bast and Mr Buckingham’s financial affairs then went into decline. A substantial amount of money was owed by them not only to Mr Gordon but also to registered mortgagees. Eventually a scheme was put in place whereby a company called Aquila Real Limited was incorporated as a vehicle to purchase the Brougham Street property from Bast and Mr Buckingham. The shareholding of that company was owned as to 80 per cent by Mr Gordon and as to 20 per cent by Mr Ashley Owers. Settlement of the property in favour of Aquila Real Limited occurred on
11 May 2010 and Aquila became the registered proprietor. Tragically on the same day Mr Gordon, an arborist, died falling from a tree in England.

[5] At a later date the property was on-sold by Aquila to a Mr Eric Thorsten. The purchase price was $2.5 million. It is not suggested other than that Mr Thorsten was an arm’s length purchaser. As vendor Aquila had various registered mortgages to clear. On settlement net proceeds of approximately $707,000 were paid into Aquila’s Bank of New Zealand bank account. They were received in that account on
19 November 2011.

[6] There is evidence before the Court from Mr Murray Ellot, a Christchurch chartered accountant. He is the liquidator of Aquila and…

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 Johnston v Mapp

Details

AGLC: Johnston v Mapp [2013] NZHC 700
Case: [2013] NZHC 700
Decision Date: 27 March 2013

CaseChat Overview and Summary

In the case of Johnston v Mapp, Glynis Johnston, the sister of the deceased Philip Roland Gordon, applied for the recall of the grant of letters of administration to Vanessa Louise Mapp, the de facto partner of the deceased. The primary legal issue was whether to make orders by default and proceed to formal proof on the substance of the plaintiff's claim as against the defendant due to substantial non-compliance with court orders. The court examined the extent of non-compliance by the defendant with orders made in October 2012 and February and March 2013, which required her to provide an inventory and account of the estate.

The court determined that the defendant's non-compliance with the orders was significant, as she failed to provide specific details required by the court, such as bank accounts for her personal estate and the bank account of Wellington Luxury Limited. The defendant argued that she did not understand the import of those orders, but the court found that the subsequent order made by Dobson J on 13 March 2013 was clear. Following the submissions and an adjournment, the defendant agreed to the making of certain orders, including the recall and revocation of the grant of letters of administration to Vanessa Louise Mapp and the granting of letters of administration to Glynis Rose Johnston. The defendant was also ordered to file a complete and accurate account of the deceased's estate by a specified date.

In summary, the court granted the plaintiff's application for the recall of the grant of letters of administration to the defendant and ordered the defendant to file a complete and accurate account of the deceased's estate. The court warned the defendant that further non-compliance would result in an entitlement for the plaintiff to proceed on formal proof to judgment on specific orders. The matter was placed in the Judge's Chambers List for further proceedings.

Orders