Miah v AMP Life Ltd
[2018] NZHC 1634
•4 July 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-2864
[2018] NZHC 1634
BETWEEN ABDUR RAHIM MIAH
Plaintiff
AND
AMP LIFE LIMITED
Defendant
Hearing: 2 July 2018 Appearances:
R J Hooker for the Plaintiff
J Knight and S Kettani for the Defendant
Judgment:
4 July 2018
Reissued:
20 July 2018 at noon
JUDGMENT (1) OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 4 July 2018 at 3:00pm
(pursuant to Rule 11.5 of the High Court Rules.) and re-issued on 20 July 2018 at noon
to include the citation at paragraph [11]
…………………………………
Deputy Registrar
Solicitors:
Vallant Hooker & Partners, Ponsonby, Auckland, for the Plaintiff Chapman Tripp, Wellington, for the Defendant
ABDUR RAHIM MIAH v AMP LIFE LIMITED [2018] NZHC 1634 [4 July 2018]
[1] This decision is on one of the applications set down for hearing on 2 July 2018: the defendant’s application under r 9.34 of the High Court Rules 2016 that the plaintiff provide original wills of Afrouza Miah dated 5 May 2007 and 11 May 2007 to be examined by a Police document examiner. As to the other applications, the parties cross-applied for further discovery under r 8.19. Discussion between counsel resulted in an agreed approach. I am not required to give rulings on further discovery. The plaintiff applied under r 8.25 to set aside the defendant’s claims for privilege regarding some of the documents. I heard argument and will give my decision after the defendant has provided me with copies of the documents to inspect.
[2] Under r 9.34 of the High Court Rules the court may make a range of orders for inspecting property, taking samples, observing property, making measurements, weighing, photographing, making experiments and observing processes. It is a useful provision for obtaining evidence. The power can be used to authorise documents to be examined for their authenticity, as when, say, forgery is alleged. I do not, however, order it in this case because it is not required to enable the proper determination of a matter in issue in this proceeding.
[3] In the substantive proceeding, Mr Miah sues on a life insurance policy over the life of his wife, Afrouza Miah. His case is that in 2006 they jointly took out an “AXA Risk Protection Plan” with the National Mutual Life Association of Australasia Ltd with cover of $2,000,000. Mr Miah was adjudicated bankrupt on 4 April 2007. That severed the joint tenancy. His interest vested in the Official Assignee. His wife owned a half share in the policy as a tenant in common with the Official Assignee. Mrs Miah made two wills in Bangladesh on 5 and 11 May 2007. She died in Bangladesh on 22 May 2007. The Bangladesh death certificate gives her cause of death as “asphyxia resulting from strangulation which was ante mortem and homicidal in nature”. I was advised that there had been a prosecution for her murder.
[4] In July 2007, Mr Miah informed National Mutual of the death of his wife. He was discharged from bankruptcy on 11 August 2011. On 19 March 2012, National Mutual formally declined his claim under the policy. He began this proceeding in May 2013. He sues for his wife’s half share as executor under her will of 11 May 2007.
[5] Mr Miah proposed that the Official Assignee assign the policy to him. The Official Assignee set conditions on any assignment, namely that Mr Miah put up security for any costs which the Official Assignee would incur. Mr Miah’s challenge to the conditions was unsuccessful.1 There was no assignment.
[6] Mr Miah’s first statement of claim had three causes of action. National Mutual successfully applied for strike-out and summary judgment,2 but on appeal the cause of action alleging severance of the policy on bankruptcy was reinstated.3
[7] In September 2016, National Mutual transferred its Australia and New Zealand insurance business to AMP and consequently AMP Life Ltd was substituted for National Mutual as defendant. AMP Life Ltd applied for security for costs but the parties resolved that matter without requiring a decision of the court. Both sides have made discovery. The outstanding discovery issues are likely to be resolved soon.
[8] That does not, however, mean that the case is ready to be set down for hearing. There is the question of a grant of administration of the estate of Afrouza Miah. AMP has put Mr Miah to proof as to the death of his wife and as to his right to sue as the executor named in her will of 11 May 2007.4
[9] AMP does not accept that the signature of the testator on the will of 11 May 2007 is that of Afrouza Miah. It wants the wills to be inspected by a document examiner. It has other examples of the handwriting and signature of Mrs Miah and has made arrangements for a Police document examiner to assess the authenticity of the two wills of 5 May 2007 and 11 May 2007. I was advised that the document examiner requires the original documents, not copies. AMP submits that having the wills assessed by a document examiner will serve two purposes:
1 Miah v Official Assignee [2013] NZHC 2726.
2 Miah v National Mutual Life Association of Australasia Ltd [2015] NZHC 993, [2015] 18 ANZ Insurance Cases 62-083.
3 Miah v National Mutual Life Association of Australasia Ltd [2016] NZCA 590, [2017] 2 NZLR 241.
4 AMP Life Ltd has also pleaded affirmative defences of material misstatement and non-disclosure. But those defences do not concern the present application. I also record that AMP has not pleaded that Mr Miah was involved in the death of his wife or that, despite the death certificate, his wife is still alive.
(a)it will go to probate questions; and
(b)it may be relevant to Mr Miah’s credibility.
[10] Probate is outstanding. Even though Mrs Miah died in 2007, there has been delay in obtaining a grant of probate. Mr Hooker advised that Mr Miah had recently obtained a grant of probate in the District Court in Bangladesh. He understood that application for probate had been made in Bangladesh because the will had been made there and witnesses to the making of the will were available there. Mr Miah intended to reseal probate under s 71 of the Administration Act 1969.
[11] The importance of obtaining a grant of probate can be seen in this dictum of Lord Parker in Chetty v Chetty:5
The personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant.
[12]In the case of someone who dies abroad, s 70 of the Administration Act provides:
70 Estate of person dying abroad not to vest without administration obtained in New Zealand
(1)Estate in New Zealand belonging to any person who dies abroad shall not vest in any person under any bequest or devise, or under an intestacy, or by inheritance, until administration of that estate is obtained in New Zealand; or, if probate or letters of administration of the estate have been granted in any place out of New Zealand, unless the probate or letters of administration are resealed in New Zealand as hereinafter provided.
(2)Upon the estate in New Zealand becoming legally vested in accordance with the provisions of this section, the legal estate therein shall vest as from the time of the death of the person from whom it is obtained.
(Emphasis added)
5 Chetty v Chetty [1916] 1 AC 603 (PC) at 608.
Probate granted in Bangladesh may be resealed in New Zealand, as Bangladesh is a Commonwealth country.6
[13] AMP has lodged a caveat under s 60 of the Administration Act against the grant of administration in New Zealand. A caveat may be lodged to prevent resealing under s 71.7 Accordingly, when and if Mr Miah applies to reseal the Bangladesh probate in New Zealand, the procedures under s 61 of the Administration Act are likely to be triggered. That will be a separate proceeding. If probate is granted, Mr Miah will be able to rely on the grant for standing in this proceeding and as proof of death under s 17 of the Administration Act:
17 Administration as evidence
Every administration of a will or with a will annexed shall be evidence of that will upon all questions concerning real estate in the same manner and to the same extent as in questions concerning personal estate; and every administration shall, in the absence of proof to the contrary, be sufficient evidence of the death and the date of the death of the testator or intestate.
[14] The court may make orders under r 9.34 “for the purpose of enabling the proper determination of any matter requested in a proceeding”. Probate, which goes to Mr Miah’s standing, will not be decided in this case, but in a separate proceeding under the Administration Act to have probate resealed and to discharge AMP’s caveat. The validity of the will of 11 May 2007 may be a live issue in that proceeding. Resealing probate is not a rubber-stamp exercise, as Denniston J noted in Re Miller:8
The sealing is not, therefore, a purely ministerial act as is contended, and the application is within the control of the Court. I have little doubt that, if on the application there appeared a prima facie case of fraud or misconduct in the original application, this Court could stay proceedings until the matter could be investigated in the Court granting the original letters of administration.
[15] While the Judge dealing with the resealing application might give directions under r 9.34 (and I am not saying whether the Judge should), establishing the authenticity of the wills is not required for this proceeding because the court’s decision on the probate resealing application will be determinative as to Mr Miah’s standing.
6 Administration Act 1969, s 71(1)(a).
7 Re Miller (deceased) (1914) 34 NZLR 239 (SC).
8 At 241.
Because probate is to be decided in a separate proceeding, it is not in issue in this proceeding and an order under r 9.34 cannot be made.
[16] Examination of the wills should not be ordered simply to allow AMP to probe credibility. As a general rule, discovery and interrogatories are not ordered to give an opportunity to test credibility, and I see no reason to take a different course for applications for inspection under r 9.34.9 Accordingly, I see no basis for ordering assessment of the wills under r 9.34.
[17]I note some other matters:
(a)My decision not to order that the wills be examined for this case does not mean that such an order may not be made in an application to reseal probate.
(b)Even if AMP is successful in opposing resealing the Bangladesh probate in New Zealand, that may not mean that Mr Miah does not have standing to sue. He may be able to obtain a grant of administration on intestacy, having priority as the widower.10
(c)There will be practical difficulties in having the will of 11 May 2007 examined, because it is lodged with the District Court in Bangladesh. AMP’s application sought production of the document within five days. AMP had no proposals for how the document could be extracted from the Bangladesh court. Just as this court scrutinises any application to remove documents, especially wills, from the court with great care, I would expect the Bangladesh court to take a similar approach. It is unrealistic to expect the will to be produced in five days.
9 Thorpe v Chief Constable of Greater Manchester [1989] 1 WLR 665 (CA) at 673, West Harbour Holdings Ltd (in liq) v Tamihere [2014] NZHC 716 at [18] and Zeng v Cai [2018] NZHC 594 at [22]–[23].
10 High Court Rules 2016, r 27.35(1) and (4)(a).
[18] The application under r 9.34 is dismissed. While Mr Miah is entitled to costs, they should be resolved in connection with costs on the privilege application under r 8.25. I reserve costs pending my decision on that application.
……………………………….
Associate Judge R M Bell
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