Lowrey v Jonathan
[2016] NZHC 1166
•1 June 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2013-485-008201 [2016] NZHC 1166
IN THE MATTER OF THE ESTATE OF NICOLA TANGI
JONATHAN
BETWEEN
TREVOR ALEXANDER LOWREY Plaintiff
AND
SAMANTHA LEE JONATHAN Defendant
Hearing: 18 May 2016 Appearances:
C M Wakelin for the Plaintiff
P N Allan for the DefendantJudgment:
1 June 2016
JUDGMENT OF NATION J
Background
[1] Mr Lowrey says that he and the deceased (Nicola) met in 2004 and enjoyed a de facto relationship from 2005 until Nicola’s death on 27 September 2012. He says that they initially lived in caravans that he had purchased. They also lived in Nicola’s home at Temuka and, for a time, in rental accommodation in Christchurch to comply with Nicola’s parole early release conditions.
[2] From late 2008, Mr Lowrey began living and working in Australia. In 2012, Nicola travelled to Australia with the intention of joining him. On arrival at Melbourne, she was refused entry because of her criminal record. She had to return to New Zealand. Despite his being in Australia, Mr Lowrey says their de facto relationship continued, he continued to support Nicola financially and emotionally
and continued to spend time with her back in New Zealand.
LOWREY v JONATHAN [2016] NZHC 1166 [1 June 2016]
[3] Nicola died on 27 September 2012. The Public Trust had been instructed to prepare a new will for Nicola. They advised Mr Lowrey and Nicola’s daughter (the defendant, Ms Jonathan) that Nicola had never signed the will which they had prepared for her but she had revoked an earlier will. Nicola thus died intestate.
[4] Ms Jonathan consulted the Public Trust and discussed the possibility of obtaining letters of administration as Nicola’s daughter. Mr Lowrey also saw solicitors and considered applying for the grant of letters of administration on the basis he was Nicola’s surviving de facto partner.
[5] Ms Jonathan, through different solicitors, applied for and was granted letters of administration on 6 November 2013. As administrator, she subsequently sold Nicola’s Temuka property and distributed the $107,690.86 that remained in the estate, after deduction of costs, between herself and a trust of which her brother was a beneficiary, investing most if not all of those funds in a residential property in Christchurch. It has recently been the subject of a mortgagee sale with the loss of any equity in it.
The proceedings
[6] On 17 February 2014, Mr Lowrey filed an ex parte application with the High Court for the recall of the grant of letters of administration. On 4 March 2014, he filed an on notice originating application and on 7 March 2014, an application for permission to begin such proceedings. That permission was granted on 11 March
2014.
[7] On 1 July 2014, there was a settlement conference where it was agreed Nicola’s estate, after deduction of costs and debts, would be distributed between Mr Lowrey and Nicola’s two children in equal shares.
[8] Various issues arose as to the implementation of the settlement, with a significant dispute over what was to happen to Nicola’s ashes. This led to Ms Jonathan cancelling the settlement agreement, as Mr Lowrey accepted she was entitled to do. He also considered that he had been pressured unfairly into accepting the settlement and no longer considered the settlement appropriate.
[9] The Court reserved the right for Mr Lowrey to continue with an application to seek a recall of the grant of letters of administration but he had to file and serve a statement of claim with an unless order that his right to bring a claim would terminate on 10 November 2014 if that claim had not been made by 7 November
2014.
[10] On 7 November 2014, solicitors who had just been instructed by Mr Lowrey filed a memorandum with the Court seeking an extension of time to file the statement of claim, serving a copy of their memorandum the same day on Ms Jonathan and her solicitor. The unless order was suspended by Associate Judge Osborne on 18 November 2014.
[11] Mr Lowrey’s new solicitors subsequently discovered Ms Jonathan had distributed Nicola’s estate on 10 November 2014 to herself and the trust for the benefit of her brother.
[12] In a statement of claim dated 15 December 2014, Mr Lowrey alleged Ms Jonathan had obtained letters of administration through deposing fraudulently that Nicola had not been in a de facto relationship at the time of her death. He gave particulars as to the basis on which he asserted he and Nicola had been in a de facto relationship. On that basis, he sought the recall of letters of administration, orders requiring Ms Jonathan to account for the funds received in the administration of the estate and related orders. He also sought to recover the whole of the value of the estate and damages on the basis of an alleged breach of fiduciary duty or negligence. Alternatively, he sought one third of the estate and damages for breach of the settlement agreement. Similar claims were made in an amended statement of claim dated 25 June 2015.
[13] Central to the dispute between the parties was the issue as to whether Mr Lowrey and Nicola had still been in a de facto relationship at the time of her death. Ms Jonathan filed a statement of defence dated 16 October 2015 in which she admitted Mr Lowrey and Nicola had been in a de facto relationship in the past but denied that it was continuing at the time of Nicola’s death. She alleged that they had not been in a de facto relationship when Mr Lowrey was in Australia.
[14] On 4 April 2016, Mr Lowrey filed an application for orders for judgment. The application was made pursuant to r 15.15 of the High Court Rules which permits the High Court to give judgment on the basis of Ms Jonathan’s admissions of facts and on the basis she had no arguable defence to the claims Mr Lowrey had made.
[15] The application was set down for hearing on 18 May 2016. Prior to the hearing, Mr Allan, counsel who had been instructed by Ms Jonathan, filed a brief submission. In it he suggested the admissions were insufficient to prove Mr Lowrey and Ms Nicola Jonathan had been in a de facto relationship at the time of Nicola’s death. He also said there could be an issue as to whether an earlier will had in fact been revoked and that this should be taken into account by the Court and should lead to the dismissal of the application.
[16] At the commencement of the hearing, Mr Allan advised the Court that Ms Jonathan had been declined legal aid for the proceedings and had instructed him that, with the mortgagee sale of the property, she no longer had any interest in the proceedings. She did not want him to be involved further and was not going to take any further steps herself. I gave Mr Allan leave to withdraw. The hearing of the application thus proceeded on an undefended basis.
Ms Jonathan’s admissions
[17] In her statement of defence, Ms Jonathan admitted that Nicola had attempted to move to Australia and had, on occasions, expressed a wish to move to Australia. She admitted that Nicola had made diary entries referred to in an affidavit from Nicola’s mother. She admitted that, shortly after Nicola’s funeral at Temuka, she played to Mr Lowrey a video tape made by Nicola in the months leading up to her death. (Mr Lowrey said in an affidavit that in that video Nicola had spoken of her love for him and was looking forward to moving to Australia to be with him - acknowledging the continuing nature of their relationship.) She admitted distributing the estate on 10 November 2014.
[18] In paragraph 4 of an affidavit of 8 April 2014, in opposition to the application for recall of grant of letters of administration, Ms Jonathan said she accepted that her mother and Mr Lowrey had been in a de facto relationship from approximately 2005
until late 2008/early 2009. She said in that affidavit that they ended their relationship in late 2008/early 2009 when Mr Lowrey moved to live permanently in Australia and Nicola left Christchurch and moved to Temuka. While they may have spent time together and been in contact with each other after that, she said “each of them was living independent lives and from that time they were no longer living together as a couple.
[19] Ms Jonathan has admitted making a sworn witness statement to Constable Izard of the New Zealand Police on 6 October 2012 shortly after her mother’s death. In that statement Ms Jonathan said:
Trevor Lowrey is my mum’s long term partner and they have been together for over five years. He currently lives in Australia also but gives mum the financial & emotional support she needs. He has been one of the best things that has happened to mum.
…
Trevor talks to mum every day and sometimes several times a day.
[20] Mr Alan Timu, principal trustee of the Public Trust in Christchurch, has said in an affidavit of 29 March 2016 that Ms Jonathan wanted him to apply for letters of administration in the estate. In that affidavit, he refers to email correspondence of 28
November 2012 to Mr Lowrey’s then lawyer recording an admission made to him by Ms Jonathan that Nicola and Mr Lowrey were in a de facto relationship for approximately seven years leading up to Nicola’s death.
[21] It is clear from Mr Timu’s affidavit and annexure that in August 2013 Jenny
Whall of Young Hunter, solicitors of Christchurch, was acting for Ms Jonathan. On
19 August 2013, Ms Whall sent an email to Mr Lowrey’s then solicitor. That email
stated:
We have been requested by Samantha Jonathan, daughter of the deceased, to make an enquiry as to the administration of her mother’s estate.
Samantha was under the impression that the Public Trust was handling her mother’s estate but we have been advised by the Public Trust that you may be attending to the administration of the estate.
Samantha is concerned about a property in Temuka which was occupied by
Trevor Lowrey (her mother’s partner) but may now be empty. Could you
please confirm if you are administering the estate and forward to us a copy of the probate and will.
[22] I am satisfied, given the context in which Ms Jonathan must have made statements to Ms Whall and to the Public Trust, that she must have made admissions to them that at the time of her mother’s death her mother was in a continuing relationship with Mr Lowrey, sufficient to be a de facto relationship in the sense required to entitle Mr Lowrey to seek letters of administration in Nicola’s estate. I am thus satisfied there was an admission from Ms Jonathan to both the Public Trust and to Ms Whall that Mr Lowrey and Ms Nicola Jonathan’s de facto relationship, which she said had existed through until 2008/2009, had continued through until her mother’s death.
[23] I am also satisfied that, given Ms Jonathan’s acceptance that Nicola and Mr Lowrey were in a de facto relationship until Mr Lowrey moved to Australia, the statement she made to the Police on 6 October 2012 was a clear admission that such relationship had continued to the date of Nicola’s death.
[24] Those admissions are sufficient to prove that Ms Jonathan was not being honest when she said, in her affidavit in support of her application for letters of administration, “at the time of my mother’s death my mother had never been married or entered into a civil union and was not living in a de facto relationship”.
Further evidence in support of the application
[25] In considering whether to make the orders which Mr Lowrey seeks, on the basis of the above admissions, I also take into account the weight of evidence in support of his application, in particular the affidavit evidence of Nicola’s mother, Linda Pope. She also lived in Temuka. She said that:
(a) Mr Lowrey was working and living in Australia for financial reasons, Nicola was unable to get a visa to enter Australia but, at the time of her death, she and Mr Lowrey were actively pursuing an application for a special visa to enable Nicola to move to Australia to be with him.
(b) She saw them on a daily basis when they were living together at 221
King Street, Temuka (Ms Jonathan denied they had ever lived together at that address) and when Mr Lowrey was working in Australia he would return home usually on at least two occasions each year.
(c) She was very close to her daughter and could say that Nicola and Mr Lowrey had continued to have a sexual relationship until shortly before her death when Mr Lowrey was last in New Zealand in March 2012.
(d) Nicola was dependent on Mr Lowrey financially. He had arranged the refinancing of the King Street property and paid the mortgage, rates and other outgoings on the property and also provided funds which were paid into Nicola’s bank account. She understood Mr Lowrey effectively sent back to New Zealand his entire salary other than minimal living expenses while living in Australia.
(e) Although the King Street property was in Nicola’s name, a mortgage had been taken out in Mr Lowrey’s name in October 2007 to refinance debt which Nicola had incurred.
(f) Nicola and Mr Lowrey were committed to each other as a couple.
(g) Mr Lowrey had helped to support Nicola’s son, Eugene, who had been approximately seven years of age when Mr Lowrey moved in with Nicola, had provided funds to assist Eugene’s education and paid for airfares so Eugene could spend time with his sister, Ms Jonathan, in Australia.
(g) Mr Lowrey made a particular contribution to the maintenance and support of the Temuka property including working on the property, reconstructing a driveway and landscaping the section when he was in New Zealand in March 2012.
[26] Ms Pope produced diary entries made by her daughter, admitted as Nicola’s diary entries by Ms Jonathan. Those entries refer to Mr Lowrey working on the King Street property in March 2012, Nicola having visited the Australian High Commission in Wellington on 29 March 2012 in connection with seeking a special visa, Mr Lowrey paying money into her account on 3 April 2012 and 1 May 2012, and her love for Mr Lowrey and the possibility and consideration of whether she should marry him to obtain a visa on 11 July 2012.
[27] Nicola had noted in her diary that, in case of emergency, her contacts should be Mr Lowrey and Ms Jonathan.
[28] In an affidavit in support of an application for security for costs, Ms Jonathan acknowledged that Mr Lowrey had spent money on making improvements to Nicola’s property at 221 King Street, Temuka.
[29] With Mr Timu’s affidavit was a letter from the ANZ Bank of 16 October
2012 advising that bank had no account held in the name of Nicola but that she was a third party signatory on an account in the name of Mr Lowrey.
Application for grant of letters of administration to Mr Lowrey
[30] Given the admissions and other evidence referred to above, Mr Lowrey was entitled to the grant of letters of administration if Nicola had died intestate. In Ms Jonathan’s statement of defence, Ms Jonathan admitted that Nicola had died on or around 27 September 2012 but stated “she does not now admit that the deceased was intestate”.
[31] Ms Jonathan has previously admitted Nicola did die intestate. In her affidavit of 14 October 2013, in support of her application for the grant of letters of administration, she said:
I have made full enquiries and searches for a will made by the deceased. I am satisfied that the deceased died without leaving a will and was wholly intestate.
[32] That affidavit was sworn after she had been in contact with the Public Trust
over the administration of her mother’s estate.
[33] In his affidavit, Mr Timu described how Nicola had made a will with the Public Trust in 1993. The Public Trust records showed this will was revoked on Nicola’s instructions on 30 March 2010 although the Public Trust had not located a letter confirming these instructions had been given, a step which Mr Timu said could take four or five days given the problems associated with storage of documents following the Canterbury earthquakes. Mr Timu was confident that the record of revocation would not have been made without Nicola having instructed the Public Trust that she was revoking that earlier will. The revocation of that will would also have been consistent with her having instructed the Public Trust in 2008 to prepare a new will under which Mr Lowrey would have had an interest in her estate.
[34] Ms Jonathan’s actions in distributing the estate on 10 November 2014 and claiming that in doing so she was acting bona fide as the administrator of the deceased’s estate, also involve an inherent admission and acknowledgement that Nicola had died intestate so that the grant of letters of administration to her was valid.
Consequential orders
[35] In his application, Mr Lowrey seeks a declaration that the deceased’s 24
August 1993 will was validly revoked. I have regard to s 16(g) of the Wills Act
2007. I am satisfied Nicola did contact the Public Trust and instructed them that she was revoking her earlier will. The Public Trust’s record of this, in conjunction with the evidence they have provided as to her also instructing them earlier that she proposed to make a new will (albeit she did not sign it), shows that she intended to revoke that earlier will. I accordingly make a declaration that the deceased’s will of
24 August 1993 was validly revoked.
[36] Mr Lowrey sought a declaration that the plaintiff was the de facto partner of the deceased at the date of her death. The admissions and other evidence referred to above satisfies me of this. I accordingly make such a declaration.
[37] Mr Lowrey seeks an order for the recall of the letters of administration granted to the defendant on 6 November 2013. On the basis of the admissions and other evidence referred to above, I am satisfied, pursuant to r 27.35 of the High Court Rules, that Mr Lowrey would have had a prior right to be granted letters of administration. I am satisfied that his beneficial interest in the estate would not have been affected by:
(a) s 12(2) of the Matrimonial Proceedings Act 1963 (as applied by s 191(3)
of the Family Proceedings Act 1980);
(b) s 26(1) of the Family Proceedings Act 1980; (c) s 77B of the Administration Act 1969; or
(d) any choice he made between option A and option B under s 61 of the
Property (Relationships) Act 1976.
[38] However, for Mr Lowrey to be entitled to the grant of letters of administration, he would be required to swear in an affidavit that he will:1
… faithfully administer the estate of the deceased in accordance with the law, and will, if required by the court, file in the court, and verify by affidavit –
(a) a true and complete inventory of the deceased’s estate; and
(b) a true and complete account of the deceased’s estate –
(i) setting out the dates and particulars of all receipts and disbursements; and
(ii) showing, in [his] opinion, which of the receipts and disbursements are, in [his] opinion, on account of capital and which are on account of income.
[39] Mr Lowrey would also be required to swear, as to the best of his knowledge, information and belief, the gross value of the estate.
1 High Court Rules, r 27.4, Form PR3.
[40] The grant of letters of administration to Mr Lowrey would, in the particular circumstances of this case, appear to serve no useful purpose but could lead to him incurring further expense in obtaining sealed orders from the Court and subject him to obligations which would be an unnecessary burden.
[41] In these circumstances, I decline to make an order granting Mr Lowrey letters of administration on the current r 15.15 application but give him leave to pursue such application further if he wishes to.
[42] Mr Lowrey also sought a declaration that the defendant and a trust for the benefit of the deceased’s son held that the property at 1/88 Lincoln Road (comprised in CB 10K/663) or the residual proceeds of sale be held on a constructive trust for the plaintiff and vest in him personally as sole beneficiary of the deceased’s estate. Mr Lowrey’s counsel, Mr Wakelin, advised the Court that he had confirmation from the mortgagee that the mortgagee sale has now been completed. There were no residual proceeds of sale so there is no property which could be affected by such a declaration or order. The making of such a declaration and order would thus serve no useful purpose. The making of an order, pursuant to r 15.5, is discretionary. In these circumstances, the application for those declarations is denied.
[43] Mr Lowrey also sought freezing orders on the bank accounts of the defendant and the Nicola Tangi Jonathan Trust to which estate funds have been distributed. Mr Wakelin told me that Mr Lowrey had to accept that such funds, as were available to the estate from the sale of the Temuka property, had been invested in the Christchurch property which has now been sold with a loss of all equity. On that basis, it would not be appropriate to make the freezing orders sought and I decline to do so.
Costs
[44] The plaintiff also seeks costs on an indemnity basis against both Ms Jonathan and the estate of the deceased. There is nothing in the estate of the deceased which could be used to meet any order for costs. It may well be appropriate for the Court to make an order for costs against Ms Jonathan personally, given her conduct in relation to Nicola’s estate and the manner in which the proceeds of sale of the
Temuka property were dealt with. On the face of it, Mr Lowrey had made a significant contribution to that property, both through the practical work he did on it and the financial support he provided which enabled Nicola to refinance a mortgage over it and to then meet the payments required on that mortgage and other outgoings on the property. As the de facto partner of Nicola, Mr Lowrey would also have had an entitlement under the Property (Relationships) Act. Through the way Ms Jonathan has dealt with the property, Mr Lowrey has been denied the ability to pursue such claims. Ms Jonathan’s denial of the true nature of Mr Lowrey’s relationship with Nicola must also have been hurtful to him.
[45] The parties have been involved in acrimonious proceedings which need to be brought to an end. Ms Jonathan is described as a beneficiary. She has a residual debt to the ANZ Bank following the sale of the Christchurch property. Mr Wakelin accepts that the obtaining of any judgment against Ms Jonathan for damages, on the basis sought in Mr Lowrey’s statement of claim, will be of no practical value. I can however exercise some judgment over what has happened through an order that I may make as to costs. The appropriate time to make that order will be when these proceedings are brought to an end.
[46] Against that background and to ensure these proceedings are brought to a close, Mr Lowrey should obtain sealed orders reflecting the judgment which has been given, if he wishes to do so, given there is no property that he will be able to deal with as administrator of Nicola’s estate. Once such orders have been made, Mr Lowrey can file a notice of discontinuance of the proceedings. This can be done with leave reserved to him to pursue his application for costs. The presumption that
a discontinuing plaintiff must pay the defendant’s costs does not apply.2 If and once
that notice of discontinuance is filed, I will give a decision on the application for costs that has already been made.
[47] Ms Jonathan has indicated through counsel that she no longer has any interest in the proceedings. Mr Lowrey’s counsel should however send to her address for service a copy of the memorandum of counsel for the plaintiff as to costs and advise
the Court when he has done so. I direct that within 21 days of that memorandum
2 High Court Rules, r 15.23.
having been sent to her counsel, Ms Jonathan must file any memorandum she wishes to in response to the application that has been made for Mr Lowrey. If and when a notice of discontinuance has been filed, I will then consider both the plaintiff’s application for costs and any memorandum filed by the defendant.
Solicitors:
Phillip N Allan, Barrister, Christchurch
Ronald W Angland & Son, Leeston
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