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…

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 Kinney v Pardington

Details

AGLC: Kinney v Pardington [2016] NZHC 711
Case: [2016] NZHC 711
Decision Date: 18 April 2016

CaseChat Overview and Summary

Kinney v Pardington concerns an application by Erin Maureen Kinney to remove the executors of her father's estate and replace them with the Public Trust. Kinney, the ex-nuptial child of the deceased Kenneth Pardington, seeks this change to facilitate a potential claim under the Property (Relationships) Act 1976. The existing executors, Margaret Myrtle Pardington and her two sons, David John Pardington and Kenneth Mark Pardington, oppose the application. The primary issues for the court were whether the application should proceed by interlocutory means and whether grounds existed to remove the executors.

The court first considered the procedural aspect of the application. It held that an interlocutory application is defined as an application for procedural or ancillary relief and that Kinney's application to replace executors did not fit this definition. The court reasoned that the application was substantive in nature, seeking a different form of relief than initially pleaded. The court found that the application should have been brought as a statement of claim, allowing for full pleadings and a proper response from the defendants. The decision referenced Vincent v Ranger, where a similar procedural misstep was addressed. The court concluded that the application was misconceived and declined the interlocutory application.

The court did not address the merits of whether grounds existed to remove the executors since it found the application procedurally flawed. However, it noted that this decision should not be construed as an indication of the merits of any potential future claims Kinney may bring through the proper procedural channels. Costs were reserved, allowing for a brief memorandum to be filed if any party wished to challenge the costs decision.

This case highlights the importance of following proper procedural steps in legal proceedings, particularly in complex estate matters involving potential conflicts of interest among executors and beneficiaries. The court's decision underscores the necessity of adhering to procedural rules to ensure a fair and effective resolution of disputes.

Orders