IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-443-000058 [2015] NZHC 725
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: 18 November 2015 Appearances:
S C Herbert for the Plaintiff
K A McKenzie for the Defendants
S Hughes QC for the Interested PartiesJudgment:
17 April 2015
JUDGMENT OF ASSOCIATE JUDGE SARGISSON
This judgment was delivered by me on 17 April 2015 at 9.45 a.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors / Counsel:
Govett Quilliam, New Plymouth
S Herbert, New Plymouth
S Hughes QC, New Plymouth
ERIN MAUREEN KINNEY v MARGARET MYRTLE PARDINGTON [2015] NZHC 725 [17 April 2015]
Summary
[1] This is an interlocutory application by the intending plaintiff, Ms Kinney, for an order for particular discovery before she commences a proceeding to seek orders:
(a) Replacing the executors of her father’s estate and appointing in their
place the Public Trust;
(b)Declaring that assets that were jointly owned by her father and his wife (not her mother) are relationship property and that a half share of such assets belongs to her father’s estate;1
(c) Requiring the executors of her father’s estate to gather in the relationship property assets and hold them on the trusts set out in her father’s will. 2
Background
[2] Ms Kinney has already commenced a proceeding against the executors of her father’s estate under the Family Protection Act 1955 to seek provision from the estate in addition to that already made for her in his will. She proposes to bring a “companion” proceeding for the purposes of which she has made the discovery application.
[3] There has been a hearing in that proceeding before Toogood J to determine preliminary questions of law. In his judgment of 24 February 2014 he helpfully set out the background which is pertinent to this application. I refer to it briefly.
[4] Erin Maureen Kinney was born on 31 July 1990 from an extramarital relationship which her father, Kenneth John Pardington, had with her mother. Mr Pardington’s widow, Myrtle, and their two adult sons, Mark and John, did not know
of Ms Kinney’s existence until just over three months after Mr Pardington’s death.
1 Property (Relationships) Act 1976 s 88; Family Protection Act 1955.
2 Administration Act 1969, s 21.
[5] Mr Pardington died on 1 September 2011, leaving a will dated
13 September 1989. Probate of the will was granted on 29 September 2011, the executors and trustees of the estate being Mr Pardington’s widow and sons. According to an affidavit of the executors as to assets and liabilities sworn in September 2013, the total value of the assets in Mr Pardington’s estate is
$940,908.78. Liabilities total $536,782.54. The net value of the estate as at 25 June
2013 is therefore said to be $178,759.93.
[6] Following Mr Pardington’s death, Mrs Pardington…
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- Kinney v Pardington [2015] NZHC 725
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- [2015] NZHC 725
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CaseChat Overview and Summary
The legal issues before the court were whether Kinney was or may be entitled to claim the relief she intended to seek, and whether it was impossible or impracticable for her to formulate her claim without the documents she sought. The court found that Kinney was not entitled to claim under section 88 of the Property (Relationships) Act 1976 as she was not a personal representative of the deceased spouse or partner. However, she was entitled to seek the replacement of the executors under section 21 of the Administration Act 1969. The court further found that Kinney could formulate her claim without the documents she sought, as the existing documents provided sufficient information to formulate the claim. Consequently, the application for pre-commencement discovery was denied.
The court's reasoning was based on the need to distinguish between genuine claims and fishing expeditions, ensuring that pre-commencement discovery was not granted merely because a claim was possible. The court concluded that Kinney could proceed with her claim to replace the executors, with any discovery taking place after the claim was filed. The court reserved the decision on costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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