Kennedy v Kennedy - [2017] NZHC 168

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-000127 [2017] NZHC 168

UNDER
the Administration Act 1969/Trustee Act

1956

AND

IN THE MATTER

of an application for appointment of a new trustee

BETWEEN

R J KENNEDY Plaintiff

AND

I J KENNEDY Defendant

Hearing: 3 February 2017

Appearances:

R J B Fowler QC for Plaintiff
L A Andersen for Defendant

Judgment:

16 February 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on cross-application for summary judgment

Introduction

[1] A mature stepson (Mr Kennedy) sues his elderly stepmother (Mrs Kennedy). Upon the recent death of Mr Kennedy’s father (Mrs Kennedy’s husband), all Mr Kennedy’s property interests passed by survivorship to Mrs Kennedy. It is the hope of Mr Kennedy that, if the relief he seeks is granted, steps will be taken by a new estate trustee to bring a relationship property claim against Mrs Kennedy so as to establish a fund within the estate. Mr Kennedy would then bring a family protection
claim.

R J KENNEDY v I J KENNEDY [2017] NZHC 168 [16 February 2017]

The thrust of the interlocutory applications

[2] Mr Kennedy and Mrs Kennedy pursue cross-applications for summary judgment. Mr Kennedy says that his case for having an independent trustee appointed is so strong that an appointment must be made. Mrs Kennedy on the other hand asserts that Mr Kennedy’s ultimate goal of obtaining relief under the Family Protection Act 1955 is so weak that he is not entitled to have an administrator appointed to consider and possibly begin what would ultimately be a fruitless legal exercise.

The substantive proceeding

[3] Mr Kennedy commenced this proceeding with a statement of claim by which he sought an order removing Mrs Kennedy as the executor/trustee of the estate. The relief was misconceived as Mrs Kennedy had not been appointed administrator or applied for probate.

[4] Mrs Kennedy filed a defence which took that point.

[5] Mr Kennedy subsequently filed an amended statement of claim. He now seeks an order granting administration of the estate to someone other than Mrs Kennedy. In his amended statement of claim he did not identify his proposed administrator.

[6] Mr Kennedy wishes to pursue an amended application for summary judgment based on his amended statement of claim. Mr Fowler QC, appearing for Mr Kennedy, accepted that Mr Kennedy, by reason of the now different claim, requires the leave of the Court to pursue summary judgment in relation to the amended claim.1

[7] Mrs Kennedy does not oppose the grant of leave as she wishes to have both
Mr Kennedy’s application and her cross-application heard and disposed of at the same time. Leave will accordingly be granted to Mr Kennedy.

1 Rule 12.4(2) High Court Rules applying.

Mr Kennedy’s intended route to ultimate relief explained

The family history

[8] The material features of the family history are not in dispute. The parties have filed affidavits as to these matters. Materially:

(a) Mrs Kennedy and her late husband each had one previous marriage and children by those marriages;

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 Kennedy v Kennedy

Details

AGLC: Kennedy v Kennedy [2017] NZHC 168
Case: [2017] NZHC 168
Decision Date: 16 February 2017

CaseChat Overview and Summary

In the case of Kennedy v Kennedy, the court was required to decide on cross-applications for summary judgment brought by R J Kennedy (the stepson) and I J Kennedy (the stepmother). R J Kennedy sought to have an independent trustee appointed to manage the estate of his late father, with the aim of pursuing a family protection claim against I J Kennedy. I J Kennedy opposed the application, arguing that R J Kennedy's claim was unlikely to succeed and that appointing an administrator would be an unnecessary expense. The court considered whether the appointment of an administrator would be necessary or expedient under the Administration Act 1969 and whether R J Kennedy's family protection claim met the threshold for "serious injustice" under the Property (Relationships) Act 1976. The court found that the appointment of an administrator would not be necessary or expedient, and that R J Kennedy's family protection claim did not meet the threshold for "serious injustice." Therefore, the court dismissed R J Kennedy's application for summary judgment and granted judgment in favour of I J Kennedy. R J Kennedy was ordered to pay I J Kennedy's costs on a 2B basis together with disbursements.

Orders