Manjarrez v Chisholm

[2023] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-154

[2023] NZHC 667

IN THE MATTER OF

the Estate of Robert Thomas Chisholm

BETWEEN

STELLA MARIE RAMIREZ MANJARREZ

Applicant

AND

HENRY CHISHOLM (as executor of the Estate of Roberty Thomas Chisholm) Respondent

On the Papers
Judgment:	29 March 2023

JUDGMENT OF GWYN J

(Without notice application for interim injunction)

[1]                 A without notice application for an interim injunction has been referred to me as Duty Judge.

[2]                 The applicant, Stella Marie Ramirez Manjarrez, is a residuary beneficiary of the Estate of Robert Thomas Chisholm (the Estate). The respondent, Henry Chisholm, is the executor of the Estate.

[3]The application is being made without notice because:

(a)The applicant has no knowledge of where the respondent is currently living and service of the application would thus be difficult.

(b)Requiring the applicant to proceed on notice would cause undue delay and material prejudice to the applicant.

MANJARREZ v CHISHOLM [2023] NZHC 667 [29 March 2023]

(c)The application affects only the residuary beneficiaries of the Estate in issue and those remaining residuary beneficiaries consent to the orders sought being made.

[4]The order sought is:

An order that the funds of the estate of Robert Thomas Chisholm currently held in the trust account of Don J. McIlroy, of Wellington, Barrister and Solicitor, not be distributed in any form without the consent of all residuary beneficiaries or by further order of this Court.

[5]                 The applicant’s affidavit filed in support of the application annexes a draft statement of claim in which the applicant seeks removal of the respondent as executor and trustee of the Estate of Robert Thomas Chisholm.

[6]                 The applicant’s affidavit records that the Estate’s solicitor, Mr McIlroy, has been instructed by the respondent to discontinue acting on the Estate and to pay all monies held on the Estate’s account to the respondent. The Estate’s solicitor is on leave until 31 March 2023 and it appears the solicitor has advised that the funds would remain on deposit until that date.

[7]                 Having convened a telephone  conference  with  the  applicant’s  solicitor,  Mr Taylor, I am prepared to deal with the application on a without notice basis. I am satisfied that the grounds for the making of an interim injunction, as set out in the application, have been made out and it is appropriate to make an interim injunction in the terms sought.

[8]                 The application and supporting documents, together with this judgment, are to be served on the Estate’s solicitor, Don J. McIlroy. If Mr McIlroy is able to locate and communicate with the respondent, Mr McIlroy is directed to advise the respondent of the terms of the order.

[9]                 This interim injunction will remain in force until further order of the Court. I grant leave to the respondent to apply, on notice, to have the order set aside.

Gwyn J

Solicitors:

Wilkinson Rodgers Lawyers, Dunedin