Jones v Jones

[2024] NZHC 3491

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2022-442-52

[2024] NZHC 3491

UNDER

the Administration Act 1969

IN THE MATTER

of the estate of Basil Raymond Jones

BETWEEN

LAUREL DAWN JONES

Applicant

AND

CINDY MARIA JONES

First Respondent

JASON RAYMOND JONES

Second Respondent

Hearing:

On the Papers

Counsel:

A M Holloran for Applicant

D R Weatherley for Respondents

Judgment:

21 November 2024

JUDGMENT OF McQUEEN J

[1]    In a judgment dated 7 June 2023, Isac J granted an application by Ms Laurel Jones for an order under s 21 of the Administration Act 1969 removing all three executors of the estate of Mr Basil Jones (the Judgment).1 Those executors were the applicant and both respondents in this proceeding. It is not necessary here to describe the dispute in any detail other than to say that it is between Ms Laurel Jones, the surviving wife of Mr Basil Jones, and Ms Cindy Jones and Mr Jason Jones, Mr Basil Jones’ two adult children from a previous relationship.

1      Jones v Jones [2023] NZHC 1408, at [34].

JONES v JONES [2024] NZHC 3491 [21 November 2024]

[2]    In the Judgment, Isac J recorded that a question remained as to the appropriate replacement executor. The Judge directed that:2

(a)the plaintiff  file  a  consent  to  act  from  the  Public  Trust  within  10 working days of the date of the Judgment;

(b)if such consent was forthcoming, the Court would make an order appointing the Public Trust on the papers;

(c)if such consent was not forthcoming, the parties file memoranda within 15 working days identifying an independent professional executor to be appointed, and the Court would determine the issue on the papers.

[3]Joint memoranda of counsel have been filed dated 13 and 20 November 2024.

[4]    Counsel advise that the consent of the Public Trust was not able to be filed within the timeframe anticipated in the Judgment. Further, both an appeal and a cross- appeal were filed against the Judgment. The appeals were due to be heard in October 2024.

[5]    Counsel advise that the parties have now resolved all issues between them, including as to the administration of the estate, the identity of the executors and     Ms Laurel Jones’ applications under the Family Protection Act 1955 and Property (Relationships) Act 1976. The parties have entered a deed of family arrangement, a copy of which is annexed to the first joint memorandum of counsel.

[6]    The deed of family arrangement resolves the conflicts between the executors on the basis that, looking forward, Ms Cindy Jones and Mr Jason Jones are to carry out the executor role for the estate of Mr Basil Jones and Ms Laurel Jones will not take such a role.

[7]    Counsel submit that this Court is not functus officio because the determination of appointment of an independent professional executor has not yet been made.

2 At [35].

[8]Accordingly, the parties request that the following orders are made by consent:

(a)confirming that the applicant, Ms Laurel Jones, is no longer an executor or administrator of the estate of Basil Jones;

(b)confirming that the respondents, Ms Cindy Jones and Mr Jason Jones, remain as executors and administrators of the estate of Basil Jones;

(c)in the alternative, reappointing Ms Cindy Jones and Mr Jason Jones as administrators and executors of the estate of Basil Jones.

Discussion

[9]I acknowledge the parties’ settlement of their dispute by agreement.

[10]   I agree with counsel that this Court is not functus officio. Despite memoranda as to an independent professional executor not being filed within the 15 working day period directed in the Judgment, I consider it is correct to say that because the determination of such an appointment has not yet been made as contemplated, this Court has not yet completed its decision-making function in this proceeding. Thus, the Court’s jurisdiction is not exhausted.

[11]   The Judgment records an order removing each of Ms Laurel Jones, Ms Cindy Jones and Mr Jason Jones as executors of Mr Basil Jones’ estate. For this reason, I consider it necessary to reappoint Ms Cindy Jones and Mr Jason Jones as administrators and executors. Equally, this means that a further order that Ms Laurel Jones is not an executor or administrator of the estate is strictly unnecessary, however, I record it nonetheless, for confirmatory purposes.

[12]   For clarity, I consider it appropriate that the parties file a notice of discontinuance of the proceeding. Counsel have undertaken to do so, and there is no issue as to costs.

Orders

[13]   I make the following orders by consent and on the undertaking from counsel that a notice of discontinuance of this proceeding (with no issue as to costs) will be filed in the Court within five working days:

(a)Ms Laurel Jones is removed as an executor of the estate of Mr Basil Jones as from 7 June 20233; and

(b)Ms Cindy Jones and Mr Jason Jones are appointed as executors and administrators of the estate of Mr Basil Jones.

McQueen J

Solicitors:

Pitt & Moore, Nelson for Applicant

Young Hunter, Christchurch for Respondents

3      Jones v Jones, above, n 1 as at [34].