Jurisich v Harris - [2016] NZHC 525

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-485-605889 [2016] NZHC 525

IN THE ESTATE OF IHAIA GILLMAN-HARRIS

IN THE MATTER

of the Administration Act 1969

BETWEEN

JEANA JURISICH

Caveator

AND

DESMOND HARRIS

Respondent

Hearing: 18 February 2016 (last submission 4 March 2016)

Counsel

A G Rowe for caveator
A W Johnson for respondent

Judgment:

24 March 2016

JUDGMENT OF KATZ J

This judgment was delivered by me on 24 March 2016 at 11:00am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Wells & Co, Auckland
Martelli McKegg, Auckland

Copy to: Public Trust

JURISICH v HARRIS [2016] NZHC 525 [24 March 2016]

Introduction

[1] Ihaia Gillman-Harris died in tragic circumstances on 27 December 2014. Two men have been charged with his murder. They face trial in the High Court at Auckland later this year.

[2] Mr Gillman-Harris died intestate. He was survived by ten siblings, who are entitled to share equally in his estate. One of the deceased’s brothers, Desmond Harris, applied for letters of administration to enable him to administer the estate. One of the deceased’s sisters, Jeana Jurisich, does not believe that Mr Harris is a suitable person to administer their brother’s estate. She has filed a caveat, objecting to his appointment as administrator.1

[3] As is the usual practice in such circumstances, on 12 August 2015 an order nisi was made in respect of Mr Harris’s application. This enables the deceased’s estate to be administered on an interim basis, pending the determination of Ms Jurisich’s objection to the appointment of Mr Harris as administrator. An order was also made requiring Ms Jurisich to “show cause” why the order nisi in favour of Mr Harris should not be made absolute.2 Having now heard from the parties on that
issue, I must determine whether to:3

(a) make the order nisi absolute; (b) discharge the order nisi; or
(c) order that the application for administration be made in solemn form.

[4] Mr Harris submits that I should either make the order nisi absolute
(his preferred option) or order that his application be made in solemn form. Ms Jurisich submits, on the other hand, that I should either discharge the order nisi

1      Pursuant to ss 60 and 61 of the Administration Act 1969 (“Act”).
2      Pursuant to s 61(d) of the Act.
3      These are the three options under s 61(d) of the Act

and appoint a temporary administrator (her preferred option), or order that the application be made in solemn form.

[5] If I order Mr Harris to make his application for letters of administration in solemn form, the application would then need to proceed to a full contested hearing. Such a hearing would most likely require the cross-examination of most or all of the witnesses who have sworn affidavits to date.

Relevant legal principles

[6] If a caveator does not raise sufficient grounds at a s 61(d) “show cause” hearing to establish that a full inquiry should be made into the matters raised by the…

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 Jurisich v Harris

Details

AGLC: Jurisich v Harris [2016] NZHC 525
Case: [2016] NZHC 525
Decision Date: 24 March 2016

CaseChat Overview and Summary

Jeana Jurisich filed a caveat objecting to the appointment of Desmond Harris as the administrator of the estate of her deceased brother, Ihaia Gillman-Harris. The High Court of New Zealand was required to decide whether to make the order nisi absolute, discharge the order nisi, or order that the application for administration be made in solemn form. The court considered the evidence provided by both parties, including affidavits and witness statements. The court also took into account the additional information that emerged during the hearing, such as Mr. Harris's decision to distribute the estate's assets before the hearing. The court found that Mr. Harris's actions demonstrated poor judgment and a misunderstanding of his legal obligations. The court decided to discharge the order nisi in favour of Mr. Harris and appoint the Public Trust as the temporary administrator of the estate. The court also ordered Mr. Harris to cooperate with the Public Trust and provide all relevant information and documentation regarding the estate.

Orders