Kinney v Pardington - [2015] NZHC 725

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 Parties

Judgment:

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…

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 [2015] NZHC 725
Case: [2015] NZHC 725
Decision Date: 17 April 2015

CaseChat Overview and Summary

Kinney v Pardington involved an interlocutory application by Erin Maureen Kinney against Margaret Myrtle Pardington and her sons, David John Pardington and Kenneth Mark Pardington, for an order of particular discovery before initiating proceedings to replace the executors of her father's estate with the Public Trust, declare certain jointly-owned assets as relationship property, and require the executors to gather these assets and hold them in trust. Kinney sought the order to ensure that the assets were included in the estate, arguing that the executors had a fiduciary duty to maximize the estate and that their refusal to divide the relationship property created a conflict of interest.

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