McGregor v McGregor - [2016] NZHC 3142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2134 [2016] NZHC 3142

UNDER the Property Law Act 2007

BETWEEN

JUDITH ANN MCGREGOR Plaintiff

AND

MARK ANDREW MCGREGOR, NATASHA MARIE STOKES AND JUDITH ANN MCGREGOR AS EXECUTORS OF THE ESTATE OF JOHN DUNCAN MCGREGOR Defendants

Hearing: 15 December 2016

Counsel:

PM Molloy for plaintiff
PJ Stevenson for defendants

Judgment:

19 December 2016

JUDGMENT OF FITZGERALD J

Solicitors: PM Molloy, Auckland
Douglas Burgess Law, Auckland

McGregor v McGregor, Stokes and McGregor as executors of the Estate of JD McGregor [2016] NZHC 3142 [19 December 2016]

Contents

Introduction ............................................................................................................[1] Factual background ................................................................................................[7] Legal principles ....................................................................................................[16] The parties’ submissions ............................................................................................
Applicants’ submissions [27]
Plaintiff ’s submissions [29]

Analysis ......................................................................................................................
Jurisdiction to order joinder [31]
Discretion to exercise jurisdiction [49] Costs .....................................................................................................................[52] Conclusion............................................................................................................[53] Result....................................................................................................................[54]

Introduction

[1] Mark Andrew McGregor, John Brendan McGregor and Erin Margaret Pusich are siblings. They are the children of the late John Duncan McGregor. For convenience, I will refer to the applicants as Mark, John and Erin. I will refer to their father as “the Deceased”. Mark, John and Erin apply to be joined as further defendants to this proceeding.

[2] The plaintiff to this proceeding is Judith Anne McGregor (“Mrs McGregor”), the Deceased’s second wife. The existing defendants to the proceeding are the three executors/trustees of the Deceased’s estate, namely Mark, Mrs McGregor herself and Mrs McGregor’s daughter, Ms Natasha Stokes. Mrs McGregor seeks an order pursuant to s 339 of the Property Law Act 2007 (“Act”) for the sale of a residential property in Henderson (“Property”). Mrs McGregor co-owns the Property with the
executors/trustees of the Deceased’s estate (each owning a 4/9th and a 5/9th share in

the Property respectively). I will refer to the share of the Property that is now owned

by the executors/trustees as the “Deceased’s share in the Property”.

[3] By his will, the Deceased gave his share in the Property to the executors/trustees, on trust, to permit Mrs McGregor to use and occupy the Property for the remainder of her life. Pursuant to the will, during the term of her life interest, Mrs McGregor may request the executors/trustees to sell the Deceased’s share in the Property (which in all likelihood, would require a sale of the Property as a whole), and to employ the proceeds of sale in the purchase or erection of another property (to be held on the same trusts), or to invest the proceeds of sale with the net income to be paid to Mrs McGregor during her lifetime. Upon Mrs McGregor’s death, the Deceased’s share in the Property or the proceeds of sale is to form part of the Deceased’s residual estate. Mark, John and Erin are the final beneficiaries of the residual estate.

[4] Mrs McGregor has brought these proceedings as the executors/trustees are unable to agree on matters concerning the Property. Underlying the present application is what appears to be a rift between Mark, John and Erin on the one hand, and Mrs McGregor on the other.

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 McGregor v McGregor

Details

AGLC: McGregor v McGregor [2016] NZHC 3142
Case: [2016] NZHC 3142
Decision Date: 19 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Fitzgerald J considered whether Mark, John and Erin should be joined as further defendants to the proceedings brought by Mrs McGregor, the widow of John Duncan McGregor. Mrs McGregor, along with Mark and Natasha Stokes, is an executor/trustee of the Deceased's estate and seeks an order for the sale of a residential property in Henderson under s 339 of the Property Law Act 2007. The Deceased's will gave his share in the property to the executors/trustees on trust, permitting Mrs McGregor to use and occupy the property for the remainder of her life. Mark, John and Erin, the Deceased's children, apply to be joined as further defendants, considering there are other options to be considered in respect of the future disposition of the property. The court first considered whether it had jurisdiction to order joinder and whether it should exercise its discretion in favour of joinder. The court concluded that the applicants had a present vested interest in the Deceased's share in the Property, which was the subject matter of the litigation and that their rights in respect of the subject matter of the proceedings may be directly affected by the outcome of the litigation. The court also found that in the present circumstances, it was quite possible that the executors would take no steps in this proceeding, with the result that the final beneficiaries' interests would not be before the Court on the s 339 application. The court therefore made an order for the applicants to be joined as further defendants to the proceeding.

Orders