Moody v Morrison HC Auckland M138-Sd02

[2002] NZHC 777

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M138-SD02

UNDER THE Administration Act 1969

AND UNDER the Matrimonial Property Act 1963

AND UNDER the Family Protection Act 1955

AND IN THE MATTER in the estate of ANDREW BRIAN MOODY of 203 Whitford Road, Howick, Auckland, Retired

BETWEEN PETER BRIAN MOODY of Auckland, Manager
First plaintiff

AND YVONNE JUNE MORRISON of Auckland, Widow and as executrix of the ESTATE OF ANDREW BRIAN MOODY
Defendant

Hearing: 23 July 2002

Counsel:
Mr R Dillon for plaintiff
Mrs Dickens for defendants

Date of minute: 23 July 2002

JUDGMENT OF MASTER LANG
[re Interlocutory Application for appointment of Administrator]

Solicitors: Gaze Burt, PO Box 91-345, Auckland for plaintiff
Wilson McKay, PO Box 28 347, Remuera, Auckland for defendants

[1] On Friday 19 July 2002 this matter was called in the Chambers List. At that time it was still apparent that disagreement existed as to whether or not Mr Broadbent should be appointed as the administrator of the Estate of the deceased for the purposes of this proceeding. Counsel advised me that Ms Morrison had accepted that she should stand down as executrix but at that stage she was not prepared to agree to the appointment of Mr Broadbent as the administrator.

[2] At that time I directed that the proceeding be called again before me in the form of an evaluation conference in order to ascertain whether there might be some middle ground to resolve this particular issue before the parties incurred further expense. At that time I also asked counsel to discuss the matter between themselves and to come to Court prepared to accept a number of alternatives rather than to proceed on the basis that only one option was acceptable to their respective clients.

[3] I am pleased to say that when the matter was called before me this morning counsel were able to advise me that agreement had been reached to the appointment of Mr Broadbent as the administrator of the Estate for the limited purpose of prosecuting this proceeding.

[4] Accordingly I now make an order in terms of the interlocutory application filed by the plaintiffs and dated 10 June 2002. Counsel for the plaintiffs is to seal a copy of this order and to provide it to Mr Broadbent within 7 days of this judgment.

[5] Counsel are agreed also that it is appropriate that timetable orders be made to progress this matter further. Accordingly I direct by consent:

[a] Mr Broadbent is to have until 20 August 2002 to consider the proceedings and to make his own independent decision as to whether or not they should proceed. I add for the sake of clarity that the plaintiffs and Mr Broadbent have entered into a deed of indemnity pursuant to which the plaintiffs have already agreed to meet Mr Broadbent’s costs in full.

[b] In the event that Mr Broadbent accepts that the proceeding should continue the defendant is to file a list of documents by 24 September 2002 and also by the same date to provide the plaintiffs with a letter setting out the documents which she believes the other parties are likely to have in their possession and which may be relevant and therefore discoverable in this proceeding.

[c] The plaintiffs are to inspect the defendant’s lists of documents no later than 15 October 2002.

Next event

[6] This proceeding is to be the subject of an evaluation conference on 31 October 2002 at 9 am (30 minutes allocated). I will leave it to the discretion of counsel to determine whether or not it would be helpful for the parties themselves also to attend at that conference. At the conference I will deal with any outstanding issues which might arise in relation to discovery and I will also make further timetable orders to progress this matter further towards a hearing.

[7] I am also advised that the defendant proposes to issue her own separate proceedings seeking further provision from the estate pursuant to the Family Protection Act 1955 and also under the Matrimonial Property Act 1963. When these are filed the defendant should ask the Registrar to ensure that the initial telephone conference is held before me. At that time I will make initial timetable orders and will then adjourn that new proceeding to a directions conference to be held at 9 am on 31 October 2002 also.

[8] Finally I would like to express my appreciation to counsel and the parties for the realistic attitude which they have shown in resolving this interlocutory application. It is a matter which could have occupied some time and also attendant expense if it had been necessary for the Court to resolve it on an argued or defended basis. The proceeding is adjourned accordingly.