Kinney v Pardington

[2016] NZHC 711

IN THE HIGH COURT OF NEW ZEALAND

NEW PLYMOUTH REGISTRY

CIV-2013-443-000058

[2016] NZHC 711

BETWEEN

ERIN MAUREEN KINNEY

Plaintiff

AND

MARGARET MYRTLE PARDINGTON

First Defendant

AND

DAVID JOHN PARDINGTON

Second Defendant

AND

KENNETH MARK PARDINGTON

Third Defendant

AND

MARGARET MYRTLE PARDINGTON, DAVID JOHN PARDINGTON AND KENNETH MARK PARDINGTON

Interested Parties

Hearing:

15 March 2016

Appearances:

S C Herbert for the Plaintiff

K A McKenzie for the Defendants
S Hughes QC for the Interested Parties

Judgment:

18 April 2016

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 18 April 2016 at 4.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

KINNEY v PARDINGTON [2016] NZHC 711 [18 April 2016]

Govett Quilliam, New Plymouth S Herbert, New Plymouth

S Hughes QC, New Plymouth

Summary

[1]                   In this Family Protection proceeding, the plaintiff (Ms Kinney) makes an application by way of an interlocutory application for the removal of the executors of her father’s estate under s 21 of the Administration Act 1969. She seeks that the administrators be replaced by the Public Trust.

[2]The issues for determination are twofold:

(a)The first is an issue as to procedure. It is whether the application is properly made by way of interlocutory application in this proceeding.

(b)The second issue concerns the merits of the application. It is whether grounds are made out for the removal of the executors. It requires determination only if Ms Kinney’s application is the appropriate means of seeking an order for replacement of the executors.

Factual background to these issues

[3]                   Ms Kinney is the ex-nuptial child of the now deceased Mr Kenneth Pardington. Mrs Pardington and her two sons, (the defendants and the interested parties) are currently the executors of his estate. Ms Kinney wants the Public Trust appointed as administrator in order that the estate may bring a claim under the Property (Relationships) Act 1976. Mrs Pardington and her sons have no interest in bringing such a claim.

[4]                   In Mr Pardington’s will, Mrs Pardington’s entitlement was to receive his chattels and a life interest in the residue of his estate. On her death, the residue was to be divided equally amongst the children with a gift over to the grandchildren. Mrs Pardington accepted the provisions made by her late husband; she did not make an election under the Property (Relationship) Act 1976. Accordingly, all jointly owned assets by Mrs Pardington and her late husband were transferred to her by survivorship.

[5]                   Mr Pardington’s estate has an estimated value of approximately $200,000. The Pardington brothers and Mrs Pardington acknowledge that Ms Kinney has an entitlement to the estate under the Family Protection Act 1955.

[6]                   Ms Kinney submits that assets which have passed to Mrs Pardington by survivorship and now owned solely by Mrs Pardington, may be relationship property and should therefore be considered part of Mr Pardington’s estate. She wants the executors of the estate to make a claim under the Property (Relationship) Act but given who the current executors are and that they are also beneficiaries who have no interest in allowing such a claim, she submits there is a conflict of interest and that the Public Trust should be appointed in their place.

Procedural History

[7]                   In February 2013 Ms Kinney issued this proceeding seeking orders under the Family Protection Act 1955. In October  2013  the  question  of  what  comprised  Mr Pardington’s estate raised for directions as to a preliminary question before Associate Judge Abbott. In a minute that he issued on 8 October he summarised the issues as:

Are there circumstances in which property that was previously jointly owned by the deceased and another or others, and has passed to the other joint owner or owners (and hence currently is not considered by the administrators to be part of the estate) can form part of the deceased’s estate? In particular, does s 4(3) or other provisions of the Property (Relationships) Act operate to retain jointly held assets in, or bring such assets back into the estate?

[8]                   In February 2014 Justice Toogood declined to deal with these issues as preliminary questions of law. He stated that the answers to some of the questions (posed by Abbott AJ) would not resolve the real issues between the parties, because the case as pleaded addressed only some of them. He directed that by 1 April 2014 the plaintiff was to file an amended statement of claim including any further causes of action against the defendants as executors and trustees of the estate.1

1      Kinney v Pardington [2014] NZHC 289.

[9]                   Ms  Kinney  then  sought   to   obtain   pre-commencement   discovery   on  31 March 2014 by filing an interlocutory application. The matter came before me on 18 November 2014. I declined the application. I concluded that the proposed claim  to replace the executors could be formulated without pre-commencement discovery, and that Ms Kinney could make such a claim (should she still seek to have the executors replaced) according to ordinary process and discovery could occur thereafter.2

[10]               The matter of costs came before Toogood J on 12 August 2015. His Honour noted that in his earlier judgment of 26 February 2013 he had provided a summary of what appeared to be the real issues to assist the plaintiff’s claim. He noted that the plaintiff had not taken advantage of that opportunity and urged her to pursue a claim against the defendant should she wish to, without further delay.3

[11]               On 7 October 2015  Associate  Judge  Osborne  made  pre-trial  decisions.  He allocated a close of pleadings date for 13 November 2015 and directed that any amended pleadings were to be filed by 23 October 2015.

[12]               In my minute of 17 February 2016, I noted that no amended pleading had been filed therefore the claim remained one based on a single cause of action under the Family Protection Act 1955.

Interlocutory Applications

[13]               An interlocutory application is defined in the Judicature Act 1908. The definition relevantly states than an interlocutory application:4

(a)  Means any application to the Court in any civil proceedings … for an order or a direction relating to a matter of procedure or … for some relief ancillary to that claimed in a pleading …

2      Kinney v Pardington [2014] NZHC 725.

3      Kinney v Pardington [2014] NZHC 1905.

4      Judicature Act 1908, s 2.

Discussion

[14]               The purpose of the interlocutory application made by Ms Kinney is to replace the executors. It is not by any stretch an application to make an order or a direction relating to a mere matter of procedure or for some relief ancillary to the substantive relief claimed in the statement of claim in this proceeding. The only pleaded cause of action in this case is for further provision from the deceased’s estate under the Family Protection Act 1955. The only matter at issue in the claim is one of quantum of relief that should be ordered under the Property (Relationship) Act.

[15]               I am satisfied therefore that the interlocutory application for removal of the executors is misconceived in this instance.

[16]               In Vincent v Ranger the Court had to determine if permission should be given for an application under s 21 by way of an originating application. The applicant also sought leave to substitute the Public Trust as administrator to the estate. Justice Young said of the application:5

[13] I am satisfied that this is not a case where the applicants should be able to proceed by originating application. I am satisfied that a statement of claim

is required so that the respondent is fully aware of the detail of the applicants’ claim. The interests of justice in my view demand in this case a clear

exposition by the applicants of its case by way of pleading and in turn a clear response by the respondent. In this case, that can only be effectively achieved by a full and proper set of pleadings.

[17]               As was the direction in Vincent v Ranger, in this case the claim for removal of executors should be brought under Part 5 of the High Court Rules.

Result

[18]The plaintiff’s application is declined.

[19]               It is not necessary to determine the second issue at this time. It may be that there is a conflict of the kind Ms Kinney claims, but I do not wish to be seen as

5      Vincent v Ranger CIV 2009-485-1142 HC Wellington 21 August 2009.

expressing any view on that. This decision should not be taken as any indication of the merits of any new claim that the plaintiff may yet bring by using the proper procedure.

[20]               Costs  are  reserved.  A brief memorandum may  be  filed and  served within 5 working days if any party seeks to put costs in issue.

Associate Judge Sargisson