Lisk v Lisk - [2024] NZHC 3360

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000928

[2024] NZHC 3360

BETWEEN
GREGORY JACK LISK

Plaintiff

AND

ODILE RAYMONDE MATHILDE LISK

Defendant

CIV-2023-404-1559

BETWEEN

ELZA PASCALE MARIE LISK and ZOE WALKER IWA MOUNI WALKER
Plaintiffs

AND

GREGORY JACK LISK

Defendant

Hearing: 28 August 2024

Appearances:

AW Johnson for GJ Lisk, Plaintiff in CIV-2023-404-928 and Defendant in CIV-2023-404-1559

RJ Thompson for GJ Lisk in his personal capacity
C Light for OM Lisk, Defendant in CIV-2023-404-928

DJ Pine for EPM Lisk and ZIM Walker, Plaintiffs in CIV-404- 1559

Judgment:

12 November 2024

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 12 November 2024 at 4 pm pursuant to r 11.5 of the High Court Rules

Solicitors:

Registrar/Deputy Registrar

Martelli McKegg & Cormack, Auckland Shine Lawyers. Auckland

LISK v LISK [2024] NZHC 3360 [12 November 2024]

Introduction

[1] Elza Lisk (Elza) and Zoe Walker (Zoe) apply for orders consolidating these two proceedings.1

[2] The first proceeding is a claim brought by Greg Lisk (Greg), their uncle and the executor of the estate of their deceased grandmother, Iwa Lisk (Iwa). The proceeding is against Elza and Zoe’s mother, Odile Lisk (Odile), and relates to payments out of Iwa’s bank accounts prior to her death. Six causes of action are pleaded including unjust enrichment (the Unjust Enrichment Proceeding).

[3] Following the filing of the Unjust Enrichment Proceeding, Elza and Zoe filed separate proceedings to remove Greg as executor of Iwa’s estate and for distribution of the estate under the Court’s inherent equitable jurisdiction (the Removal Proceeding).

[4] In addition to the application for consolidation, Elza and Zoe apply for orders that the application to remove Greg as executor is heard before the Unjust Enrichment Proceeding and that it is stayed in the meantime. Odile supports the orders sought.

[5] Greg opposes consolidation on several grounds in his capacity as executor. Greg is separately represented in his personal capacity as a beneficiary but did not appear on the consolidation application.

[6] Counsel submits on Greg’s behalf as executor that it seems clear that, by way of the consolidation and stay applications, Elza and Zoe are effectively trying to obtain summary disposal of the estate’s substantive claims without the evidence being tested at trial.

[7] I set out the background in further detail below before considering whether the Court ought to exercise its discretion under r 10.12 of the High Court Rules 2016 (HCR) to consolidate the proceedings and whether an order ought to be made that the removal application should be heard first.

1 I refer to the parties by their first names to avoid confusion but intend no disrespect in doing so.

Background

[8] Iwa was married to Jack Lisk (Jack), who passed away in 2013. Together, Iwa and Jack had two children, Greg and Dirk Lisk (Dirk). Dirk was Odile’s husband and Elza and Zoe’s father.

[9] On 14 August 2008, Greg and Dirk were jointly and severally appointed…

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 Lisk v Lisk

Details

AGLC: Lisk v Lisk [2024] NZHC 3360
Case: [2024] NZHC 3360
Decision Date: 12 November 2024

CaseChat Overview and Summary

Elza and Zoe Lisk and Zoe Walker have applied for orders consolidating two proceedings relating to the estate of Iwa Lisk. The first proceeding is a claim brought by Greg Lisk, the executor of Iwa’s estate, against Odile Lisk, seeking payment of amounts allegedly withdrawn from Iwa’s bank accounts. The second proceeding is an application by Elza and Zoe to remove Greg as executor of the estate and for the estate to be distributed under the Court’s inherent equitable jurisdiction. The applicants seek orders that the removal application is heard before the claim and that the claim is stayed pending the outcome of the removal application.

The court was required to decide whether it should exercise its discretion under the High Court Rules to consolidate the proceedings and whether the removal application should be heard first. The court considered the principles relevant to consolidation and the removal of an executor, including the need to avoid multiplicity of proceedings, the overlapping facts and issues, and the overriding objective of securing the just, speedy, and inexpensive determination of the proceedings.

The court concluded that consolidation was desirable because the proceedings relate to the same estate, the facts and issues overlap, and the assets of the estate are relatively modest. The court also decided that the removal application should be heard first because it needs to consider the Unjust Enrichment Proceeding in determining whether Greg should be removed as executor. The court further ordered that the Unjust Enrichment Proceeding and the first cause of action in the Removal Proceeding be stayed until the determination of the removal application. The court also issued directions for a judicial settlement conference to attempt to resolve the outstanding issues between the parties.

The court granted the application for consolidation with the removal application to be heard first and ordered a stay of the Unjust Enrichment Proceeding and the first cause of action in the Removal Proceeding pending the outcome of the removal application. The court issued further directions for a judicial settlement conference and costs.

Orders