Kirby v Kirby - [2020] NZHC 401

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000112

[2020] NZHC 401

UNDER The Family Protection Act 1955

IN THE MATTER

Of the Estate of Rex Stephen Kirby

BETWEEN

EMMA-JANE TERESA JUNE KIRBY

Plaintiff

AND

CORRENA FAY KIRBY

Defendant

Hearing: 4 March 2010

Appearances:

S Ambler for Plaintiff

L Kearns and S Langston for Defendant (personal capacity)

Judgment:

5 March 2020

JUDGMENT OF VENNING J

ON APPLICATION FOR DISCOVERY

This judgment was delivered by me on 5 March 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Tomkins Wake, Hamilton

Shieff Angland, Hamilton

KIRBY v KIRBY [2020] NZHC 401 [5 March 2020]

[1] The plaintiff seeks relief under the Family Protection Act 1955 (the Act) against the estate of her late father Rex Stephen Kirby (the deceased).

[2] The plaintiff has made application for tailored discovery against Correna Kirby, the defendant and executor of the deceased’s last will. The defendant opposes the application in her personal capacity as a beneficiary. Ms Kearns advised that the defendant abides in her capacity as executrix of the estate.

Background

[3] The plaintiff is 42 years old. She is the youngest child of the deceased who died on 21 August 2018. She has an older brother Steven. Steven has a daughter aged 16.

[4] The deceased was married twice, first, to the plaintiff’s mother. He separated from her in 1987. The deceased then married the defendant in 1994. The deceased and the defendant had no children. The plaintiff’s mother died in 2015.

[5] In his last will dated 8 May 2013 the deceased made no bequests and after payment of debts and funeral expenses left the residue of his estate to the Jubilee Trust.

[6] The plaintiff issued these proceedings on 13 May 2019. On 21 August 2019 Associate Judge Smith directed the defendant, in her capacity as executrix, to file and serve evidence complying with s 11A of the Act and a schedule of the assets and liabilities of the estate.

[7] On 3 September the defendant filed an affidavit listing documents under s 11 and 11A of the Family Protection Act 1955 as directed. She also provided a brief schedule which recorded the financial position of the estate as follows:

Assets

Loan to Vista Paku Management Trust - $43,166.00
499 Share in Latham Court Limited (held as bare trustee) – Value $nil 333 Shares in Tekplas Limited (held as bare trustee) – Value $nil Personal effects – Estimated value $5,000.00 (estimated)
Liabilities
Loan from Jubilee Trust - $620,688.00 Loan from Hamilton Trust - $6,750.00
Visa - $ nil (debit balance written off by bank).
[8]On the sworn evidence of the defendant the estate was seriously insolvent.

Application for discovery

[9] The plaintiff did not accept that to be correct. She is aware that during her father’s lifetime he had a number of business and property interests. She filed an application for tailored discovery on…

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 Kirby v Kirby

Details

AGLC: Kirby v Kirby [2020] NZHC 401
Case: [2020] NZHC 401
Decision Date: 5 March 2020

CaseChat Overview and Summary

The case of Kirby v Kirby involved a claim by Emma-Jane Teresa June Kirby against the estate of her late father, Rex Stephen Kirby, under the Family Protection Act 1955. The plaintiff sought tailored discovery against the defendant, Correna Fay Kirby, who was both the defendant in her personal capacity and the executor of the deceased's will. The primary legal issue was whether the plaintiff was entitled to the discovery of specific documents to substantiate her claim for further provision from her father's estate. The court had to determine the relevance, existence, proportionality, and appropriateness of the discovery sought.

The court ruled that the discovery sought by the plaintiff was relevant to the extent that it pertained to the size and extent of the estate, and the financial positions of other claimants and beneficiaries under the will. The plaintiff's suspicion about the accuracy of the information provided by the defendant regarding the estate's assets was justified by the conflicting and evolving evidence. The court found that documents clarifying the extent of the estate, particularly those related to the Jubilee Trust as the residuary beneficiary, were necessary. However, the court limited the scope of discovery to documents directly relevant to the plaintiff's claim, such as financial accounts of specific trusts and companies, and the terms of the Jubilee Trust. The court denied requests for discovery of documents that were deemed irrelevant or speculative.

The court ordered the defendant to provide specific financial accounts and trust documents by a specified date. The plaintiff was awarded costs on a 2B basis plus disbursements, reflecting the court's view that further cooperation from the defendant could have obviated the need for the application. The court also noted the need for potential future representation of the plaintiff's minor niece, depending on the outcome of the substantive claim. The case was scheduled for a review at a Case Management Conference.

Orders