Panhuis v Cooke - [2019] NZHC 563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001188

[2019] NZHC 563

UNDER the Administration Act 1969 and the Trustee Act 1956

IN THE MATTER

of the Estate of NAOMAI JOAN COOKE

BETWEEN

ANNE PATRICIA PANHUIS

Plaintiff

AND

BRIAN JOHN COOKE

Defendant

Hearing: 8 March 2019

Appearances:

G C Jenkin for the Plaintiff

A W Johnson for the Defendant

Judgment:

25 March 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 25 March 2019 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:Wardill Pasley Law (D R Pasley), Auckland for the Plaintiff Martelli McKegg (A W Johnson), Auckland for the Defendant

Counsel: G C Jenkin, Auckland

PANHUIS v COOKE [2019] NZHC 563 [25 March 2019]

Introduction

[1] The plaintiff and defendant are sister and brother. They are co-executors and co-trustees in terms of the will of their mother, who died on 30 March 2017. The deceased left two properties in her name and a bank account.

[2] The plaintiff applies to have her brother removed as an administrator of their mother’s estate and have an independent executor and trustee appointed in his place. She also seeks an order that her brother vacate the estate property in which he is living within three weeks to enable its sale, as directed by their mother in her will.

[3] The orders are sought on the basis that the defendant refuses to complete the administration of their mother’s estate and that the delay in having the property he lives in listed for sale has been inordinate and detrimental to the plaintiff’s interests.

Preliminary issue – “without prejudice” communications

[4] The defendant has sworn an affidavit dated 31 January 2019. Attached as exhibits are 20 pages of letters and emails between his solicitors and plaintiff’s counsel and/or his instructing solicitors. The plaintiff submits that those letters and emails are part of a chain of communications between the parties’ solicitors and counsel and/or instructing solicitors, which were “without prejudice” communications. The plaintiff seeks to have these communications ruled inadmissible.

[5] The defendant submits that there was no intention by him that the documents written on his behalf attached to the affidavit would be confidential. Where there was such an intention, the defendant submits communications on his behalf were marked as “without prejudice”. Those documents have not been specifically referred to, other than in the plaintiff’s submissions.

[6] The defendant says it is important that communications sent out on his behalf (not marked “without prejudice”) are able to be provided as evidence. The defendant seeks to rely on the letters and emails at issue to counter the allegations that he has been refusing to complete administration of the estate and that the delay in having the property presented for sale was caused by him.

[7] I am of the view that the 20 pages of letters and emails are inadmissible. Section 57(1) of the Evidence Act 2006,…

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 Panhuis v Cooke

Details

AGLC: Panhuis v Cooke [2019] NZHC 563
Case: [2019] NZHC 563
Decision Date: 25 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Panhuis v Cooke was heard and decided by Woolford J on March 25, 2019. The plaintiff, Anne Patricia Panhuis, and the defendant, Brian John Cooke, are siblings who are co-executors and co-trustees of their mother's estate. The plaintiff sought to have her brother removed as an administrator of their mother's estate and to have an independent executor and trustee appointed in his place. She also sought an order for her brother to vacate the estate property within three weeks to enable its sale as directed by their mother in her will.

The legal issues the court was required to decide were whether the defendant could be removed as an administrator of the estate, and if so, whether it was expedient to appoint an independent executor and trustee in his place. The court also had to determine if it was appropriate to order the defendant to vacate the estate property.

The court ruled that the 20 pages of letters and emails between the parties' solicitors and counsel or instructing solicitors were inadmissible as they were "without prejudice" communications. The court found that the threshold of expedience in terms of s 21 of the Administration Act was met, and there existed a clear conflict of interest between the defendant's continuing occupation of the property and his role as an administrator of his mother's estate.

The court decided to remove both the plaintiff and the defendant from their positions as administrators and appointed New Zealand Guardian Trust Company Limited and Perpetual Trust Limited trading as Perpetual Guardian as the new administrator of the estate. The court also ordered the defendant to vacate the property within six weeks of the date of the judgment.

The final orders made by the court were:

(a) Anne Patricia Panhuis (nee Cooke) and Brian John Cooke, the two executors and trustees named in the will of Naomai Joan Cooke, are both removed from the office of administrator.

(b) The New Zealand Guardian Trust Company Limited and Perpetual Trust Limited trading as Perpetual Guardian is appointed administrator of the estate of Naomai Joan Cooke in place of Anne Patricia Panhuis (nee Cooke) and Brian John Cooke.

(c) Brian John Cooke is to vacate the property at 60 Pohutukawa Avenue, Orewa, Auckland and leave the property in a clean and tidy condition ready for sale within six weeks of the date of this judgment.

(d) The costs of and associated with the application and the implementation of any orders made pursuant to it are to be paid out of the estate of Naomai Joan Cooke as no finding of misconduct or unfitness is made by the Court.

(e) Leave is reserved to apply to the Court for any ancillary orders required to implement the primary orders.

Orders