Partridge v Partridge

[2024] NZHC 702

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-141

[2024] NZHC 702

UNDER

Section 21 of the Administration Act 1969, s 112 of the Trusts Act 2019 and pt 18 of the High Court Rules 2016

BETWEEN

HARRIET LOUISE ANN PARTRIDGE, TIMOTHY MICHAEL PARTRIDGE and NICHOLAS JOHN PARTRIDGE

Plaintiffs

AND

UTE PARTRIDGE as executor of the

Estate of the late Fraser Charles Partridge Defendant

Hearing:

21 February 2024

Appearances:

V Bruton KC and A McDonald for Plaintiffs

S Barker and M Garlick for the Defendant (as executor)
G M Richards for the Defendant (in her personal capacity)

Judgment:

28 March 2024

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1]    This proceeding CIV-2023-485-141 and proceeding CIV-2022-485-774 relate to the estate of the late Fraser Charles Partridge and are currently being managed together.1

[2]Before me are applications:

(a)by the defendant (as executor) for consolidation of this proceeding (being an application under the Administration Act 1969 for the

1 Partridge v Partridge, HC Wellington CIV-2023-485-141, 12 June 2023 (Minute of Ellis J).

PARTRIDGE v PARTRIDGE [2024] NZHC 702 [28 March 2024]

removal of the executor) (AA proceeding) with CIV-2022-485-774 (being an application by the plaintiffs against the defendant under the Family Protection Act 1955) (FPA proceeding);

(b)by the plaintiffs for leave to apply for summary judgment in the AA proceeding;

(c)by the defendant (as executor) in the FPA and AA proceedings for an order that the Court decide a preliminary question prior to any trial of the other issues in the proceedings.

[3]    In the course of the hearing, the parties conferred and agreed to adjourn the application for consolidation pending the outcome of the application for leave to apply for summary judgment. This was on the basis that if the application for consolidation is ultimately required to be heard, then it will be heard by VMR before me. The reason for adjournment of the application for consolidation is that a proceeding may not be consolidated while a summary judgment application in the proceeding remains alive.2

[4]    In this judgment, I deal with the plaintiffs’ application for leave to apply for summary judgment and the defendant’s application (as executor) for an order that a preliminary question be determined prior to trial of any other issues.

[5]    I have concluded that leave should be granted to the plaintiffs to apply for summary judgment, and that the defendant’s application for an order for determination of a preliminary question should be dismissed.

Background

[6]    The plaintiffs are the children of the deceased, Fraser Partridge (Fraser), from his first marriage, which ended in 2008. They are aged respectively, 32, 30 and 29 years old. The plaintiffs all live overseas.

2      East Quip Ltd (in liq) v Galvanising HB Ltd [2013] NZHC 1503 at [30].

[7]    The defendant, Ute Partridge, is Fraser’s widow, having married him in 2011. There is one child from the marriage; aged 8.

[8]    Fraser died on 21 October 2021, aged 58. He left two testamentary documents. First, a will dated 18 September 2021, probate of which was granted to the defendant on 30 May 2022. Under the will, Fraser left the defendant his entire estate but expressed the desire that “my estate provides for my three children, Harriet, Timothy and Nicklas [sic], the sum of $600,000 each”. In an earlier will dated 3 July 2014, Fraser gave his three elder children $1.2 million each.

[9]    The second testamentary document is a contracting out agreement with the defendant under s 21 of the Property (Relationships) Act 1976 dated 11 February 2020 (COA). Clause 12 is titled “Division of Relationship Property In the event of death”. Under cl 12.5 of the COA:

Subject to cl 12.6, but notwithstanding any other provision of this Agreement, the Parties agree that on the death of either of them, provided they have not Separated before that death, the survivor will be entitled to eighty percent (80%) of the Parties’ Relationship Property. The Parties will do all things reasonably required to effect this provision.

[10]   By notice dated 25 November 2022, the defendant elected ‘Option  B’ under s 61 of the Property (Relationships) Act, meaning that she elected not to make an application for a division of the relationship property but to receive her entitlement under Fraser’s will.

[11]   On 27 February 2023, Harriet Partridge served the FPA proceeding on the defendant. Timothy and Nicholas Partridge were subsequently joined as plaintiffs to the FPA proceeding. On 29 March 2023, the plaintiffs served the AA proceeding on the defendant, seeking to remove the defendant as executor and replacing her with an independent executor.

[12]   By minute dated 12 June 2023, Ellis J made orders (among others) that the AA proceeding and the FPA proceeding are to be managed together, and that leave is granted for the evidence before the High Court in the FPA proceeding to form part of

the AA proceeding (subject to any significant relevance or admissibility issues which might arise).3

Legal Principles

Leave to apply for summary judgment

[13]Rule 12.4(2) of the High Court Rules 2016 (HCR) provides:

An application by a plaintiff may be made either at the time the statement of claim is served on the defendant, or later with the leave of the court.

[14]   No guidelines are laid down in the HCR for the granting of leave, the question is a discretionary one and it is up to the party applying for leave to show why it should be granted.4

[15]   It is recognised that there are three factors that should be considered in relation to the issue of leave:5

(a)Has the delay in filing been satisfactorily explained?

(b)Are the merits of the applicant’s case for the relief sought particularly strong and therefore deserving of determination at a later time by the Court than is prescribed by the rules?

(c)The risk of miscarriage of justice in determining the application for summary judgment at a later point in time.

[16]   The Court of Appeal has emphasised that leave should not be treated as a mere formality and should be addressed as a prior step to the consideration of the summary judgment application itself:6

We add that it is important that leave be dealt with as a prior step to the merits of an application for which leave is required. The criteria for granting leave need to be addressed, even if the merits of the substantive application are, themselves, an important aspect of the leave decision.

3      Minute of Ellis J, above n 1.

4      Tip Top Icecream Ltd v Polarland Ltd (2002) 7 NZBLC 103,564 (HC) at [27].

5      Fowler v Selwyn District Council [2021] NZHC 2218 at [12] citing Tip Top Icecream Ltd v Polarland Ltd, above n 4 at [28].

6      Stevens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734 at [13].

[17]   In Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd, Andrews J held that the Court should not grant leave to apply for summary judgment out of time unless doing so will have the effect of avoiding prolonged proceedings.7

Order for preliminary question

[18]Clause 10.15 of HCR provides that:

10.15   Orders for decision

The court may, whether or not the decision will dispose of the proceeding, make orders for—

(a)the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and

(b)the formulation of the question for decision and, if thought necessary, the statement of a case.

[19]As stated by Eichelbaum J in Innes v Ewing:8

[C]learly the underlying purpose is to expediate proceedings by limiting or defining the scope of the trial in advance or obviating the need for a trial altogether …

[20]   The Court considers a range of criteria when exercising its discretion including:9

(a)the likelihood of delay in finally resolving a proceeding;

(b)whether a decision one way or the other on separate question(s) would end the litigation;

(c)the impact on the length of any subsequent hearing; and

(d)duplication of time involved in the Court and counsel “coming up to speed” again for the second hearing.

7      Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 592, (2015) 22 PRNZ 724 at [34]–[35].

8      Innes v Ewing (1986) 4 PRNZ 10 (HC) at 12–13.

9      Turners & Growers Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 5 May 2010 at [11].

[21]   A practical approach to working through the criteria set out above is demonstrated in Haden v Attorney-General10 and Karem v Fairfax New Zealand Ltd.11 These two cases address the five questions in turn:

(a)Question 1: will there be difficult demarcation questions between those issues to be addressed at the first trial and those left for the second?

(b)Question 2: will the proceedings be brought to an end?

(c)Question 3: what potential time saving does the separate question offer?

(d)Question 4: how would appeals be dealt with?

(e)Question 5: are there any other practical considerations tending one way or the other?

[22]   There have been several judicial warnings emphasising the risks involved in ordering preliminary questions. For example, in Tilling v Whiteman, Lord Scarman stated:12

Preliminary points of law are too often treacherous shortcuts. Their price can be, as here, delay, anxiety and expense.

Leave to apply for summary judgment in the AA proceeding

[23]   I propose to deal with the criteria for leave outlined above in the following order:

(a)satisfactory explanation for delay;

(b)risk of miscarriage of justice; and

(c)merits of applicants’ case.

10     Haden v Attorney-General (2011) 22 PRNZ 1 (HC) at [50]–[67].

11     Karam v Fairfax New Zealand Ltd [2012] NZHC 1331 at [60]–[89].

12     Tilling v Whiteman [1980] AC 1 at 25, [1979] 1 All ER 737 (HL) at 744.

Delay

[24]   The plaintiffs first filed  their statement of claim in the AA proceeding on    22 March 2023. The plaintiffs’ application for leave to apply for summary judgment was filed on 17 November 2023.

[25]   Mr Barker, for the defendant (as executor), submits that the application for leave was filed almost eight months after the statement of claim was filed. He notes that the COA, that the plaintiffs’ application relies on, was provided to the plaintiffs in an affidavit dated 6 April 2023 in the FPA proceeding. He submits that, even viewed from this date, there is a delay of over seven months.

[26]   Mr Barker submits that senior counsel for the plaintiffs wrote to the defendant’s solicitors on 4 September 2023 when she was first instructed raising issues with regard to the COA. He acknowledges that an issue was raised by senior counsel for the plaintiffs with regard to whether the COA was certified. He submits that this was confirmed within three days and scanned originals of the certified copies were provided,  in  response  to  the  request  by  senior  counsel  for  the  plaintiffs,  on  27 September 2023. Mr Barker submits that even if this date is taken as the latest date an application for leave should have been made, there is still a delay of 1.5 months. Mr Barker submits that the application was not “promptly made” as submitted on behalf of the plaintiffs.

[27]   It seems to me that there is a satisfactory explanation for most of the period of delay between April and November 2023 because senior counsel for the plaintiffs was first instructed and wrote to the defendant’s solicitors raising issues with regard to the COA around early September 2023. There remains a short period of delay of approximately 1.5 months, but it seems to me this can be satisfactorily explained by the plaintiffs, who all live overseas, requiring a further opportunity to consider issues and confirm instructions to commence an application for leave and for summary judgement.

[28]   A satisfactory explanation for delay is just one of the factors to be considered in determining whether to grant leave. I do not consider it is a determining factor in this case.

Is there any risk of miscarriage of justice by determining the application for summary judgment at this later point in time?

[29]   The defendant (as executor and in her personal capacity) has not raised any specific risk of miscarriage of justice by determining the plaintiffs’ application for summary judgment at this stage.

[30]   Mr Barker submits that the summary judgment application has the potential to unduly delay the ultimate determination of the proceedings. He submits that if leave is granted and if the summary judgment application was successful, the executor would have a right of appeal of that decision to the Court of Appeal. He submits this could delay resolution of the issue of the identity of the executor/administrator until well into 2025, after which the FPA claim would then be set down for substantive hearing. Mr Barker submits that such delay is not in the interests of any of the parties to the proceedings.

[31]   While there is a possibility of delay arising from the application for summary judgment (if leave is granted), including the exercise of rights of appeal if the plaintiffs are successful, I do not think that this can be elevated to being a risk of a miscarriage of justice. It seems to me that the issue of whether leave should be granted primarily turns on consideration of the merits of the plaintiffs’ application.

Merits of the plaintiffs’ case

[32]   The approach of the Court to applications under s 21 of the Administration Act is well established. In Tod v Tod,13 the Court of Appeal endorsed the following statement from the judgment of Heath J in Faruqhar v Nunns:14

(a)The starting point is the Court's duty to see estates properly administered and trusts properly executed.

(b)This jurisdiction involves a large discretion which is heavily fact-dependent.

(c)The wishes of the testator/settlor (evidenced by the appointment of a particular  executor  or  trustee)  are  to  be  given  consideration, but

13     Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22]; see also Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154 at [29].

14     Farquhar v Nunns [2014] NZHC 1670 at [13].

ultimately the question is as to what is expedient in the interests of the beneficiaries.

(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.

(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.

[33]The plaintiffs say that the defendant’s position (as executor) is that:

(a)there was relationship/jointly owned property of Fraser and the defendant (in her personal capacity) worth approximately $24 million, which has all passed to the defendant by survivorship; and

(b)Fraser had separate property worth approximately $2.9 million, and this has passed to the defendant under Fraser’s will, albeit that the defendant has stated that she will give effect to the desire of the deceased that his three adult children receive $600,000 each;

(c)the defendant (in her personal capacity) has separate property that does not come into the picture at all.

[34]   The plaintiffs acknowledge that they have received the benefit of the assignment of an approximately GBP 1 million loan made by Fraser and the defendant to the purchaser of their country home in Derbyshire, Bradley Hall.

[35]   The plaintiffs contend that leave should be granted to the executor of Fraser’s estate under s 88(2) of the Property (Relationships) Act to apply to divide the relationship property and recover assets for the estate, because refusing leave would “cause serious injustice”. Ms Bruton KC, for the plaintiffs, submits that it would be a serious injustice if, in respect of the pool of wealth brought to the relationship by Fraser, the plaintiffs’ Family Protection Act claims can bite against assets only worth about $2.9 million. Ms Bruton submits that, while the defendant remains executor, she will not consider bringing an application for leave under s 88(2).

[36]   The plaintiffs also raise issues with regard to the construction of the COA. First, the plaintiffs contend there is an issue as to whether, on the correct construction of the COA, the defendant (in her personal capacity) was precluded from choosing Option B. If so, the plaintiffs say that issues arise as to the consequence of the defendant electing Option B.

[37]   Secondly, if the defendant was entitled to choose Option, B, and the COA continues to apply, the plaintiffs contend that by virtue of cl 12.5 the relationship property assets are held on a constructive trust by the defendant as surviving joint tenant as to 20 per cent by value for Fraser’s estate. The plaintiffs contend that it would be unconscionable, and contrary to the COA, for the defendant to assert that she has become the beneficial owner of 100 per cent of the relationship property. The plaintiffs contend that, on the deceased’s death, an institutional constructive trust arose with immediate effect as to 20 per cent of the relationship property to be held on trust for the deceased’s estate.15

[38]   Alternatively, the defendants contend that, if the defendant was entitled to choose Option B, then the COA may have ceased to have any force or effect. Therefore, the COA may not bind the estate and the entire pool of jointly owned property can come into the mix on any application for division of relationship property and, depending on its status, all or some of the separate property reserved to the defendant under the COA.

[39]   A further possible analysis put forward by the plaintiffs is that, assuming an institutional constructive trust arose immediately on Fraser’s death, 20 per cent of the joint property immediately became impressed with a trust in favour of Fraser’s estate. Even though the defendant has chosen Option B, and even if the agreement no longer applies, the trust over 20 per cent of the joint property continues for Fraser’s estate.

[40]Ms Bruton submits that until an independent executor has:

(a)considered the COA and the extent to which it remains of any relevance (the defendant having chosen Option B);

15     The plaintiffs also rely on the analysis in Chambers v Chambers [2016] NZHC 583 at [137].

(b)ascertained the assets and liabilities of the estate;

(c)as appropriate sought directions from the Court;

(d)        possibly, applied for leave to divide the relationship property the plaintiffs’ FPA claims cannot be determined.

[41]   Ms Bruton refers to authorities where the Court has replaced the personal representative with an independent executor in circumstances where the personal representative has declined to bring a s 88(2) claim because, for example, they are the surviving spouse or partner of the deceased and have elected Option B under the Property (Relationships) Act.16 In Nawisielski v Nawiselski, Faire J held that:17

[21]      There have been a number of cases where an executor has been held to be in a conflicted position between his or her interest as executor and as surviving spouse. The conflict arises because it is really not possible for such a person to give impartial consideration to the relationship property issues. Mr Day referred to Teariki v O’Reilly.18 The plaintiffs were the daughters of the late Mrs O’Reilly. The defendant was Mrs O’Reilly’s second husband.  He was the sole beneficiary and executor of her will. The property also passed to him by survivorship. The daughters commenced proceeding under the Matrimonial Property Act 1963. Their intention was clearly to enlarge their mother’s estate and then to make a claim under the Family Protection Act 1955. They, like the plaintiff in this proceeding however, had no standing to bring the matrimonial property proceedings as the cause of action vested in the personal representative. The plaintiffs therefore commenced proceedings to remove Mr O’Reilly as executor.

[22]      The facts are strikingly similar to the situation which is before me. The comment of the then Chief Justice has a direct bearing on the unsuitability in these cases for person in the position of the current plaintiff and the defendant to be appointed to a position where they act as personal representative of the deceased. The Chief Justice said:19

It is clear then that the defendant in his capacity as trustee finds himself in a position of conflict, as between his own interests on the one hand and those of the plaintiffs as claimants against the late Mrs O’Reilly’s estate on the other. That coupled with the hostility existing between himself and the plaintiffs provides the jurisdiction to the Court to act and sufficient reason to do so.

16     Nawisielski v Nawisielski [2014] NZHC 1547; Public Trust v Whyman [2005] 2 NZLR 696 (CA);

Re Williams HC Hamilton CIV-2003-419-205, 27 June 2003.

17     Nawisielski v Nawisielski above n 16, at [21]–[22].

18     Teariki v O’Reilly [1992] NZFLR 534, (1992) 9 FRNZ 51 (HC).

19     At 4–5.

As filed the application sought an order appointing the plaintiffs themselves the trustees of the estate; but this would place them in the same situation of conflict of interest as presently affects the defendant.

[42]   Ms Bruton submits that the tone of the defendant’s affidavits makes it clear that she cannot separate her personal position and sense of entitlement for her and her daughter from her fiduciary role as executor. Ms Bruton submits that the defendant (as executor) has refused to file an inventory and account of the estate under r 27.32 HCR without an application to the Court and an order. However, Mr Barker indicated during the hearing that the defendant (as executor) would be prepared to provide an updated inventory and account.

[43]   An application to replace an executor will not be granted if the purpose is for an independent executor to seek leave to bring a claim under s 88(2)  of  the  Property (Relationships) Act and such a claim has no prospects  of  success.  In Smith v Velekof,20 the plaintiffs’ application to remove the defendant as administrator could not succeed because any application under s 88(2) was out of time and the estate had been finally distributed.

[44]In Chambers v Chambers, Mallon J held that:21

Leave can only be granted to the personal representatives of the deceased spouse under [section 88(2)] if the court is satisfied that refusing leave would cause serious injustice. No serious injustice could arise if the purpose is to set aside a s 21 agreement in order to pursue a Family Protection Act claim which does not have any prospect of success. The merits of the Family Protection Act claim that [the plaintiff] wishes to pursue are therefore relevant.

[45]   Other cases have held that to reach the threshold of “serious injustice”, a Family Protection Act claim should be “meritorious”,22 “credible”,23 “reasonably arguable”24 or “tenable”.25

[46]   Mr Barker submits the plaintiffs’ Family Protection Act claims lack merit. He submits that the plaintiffs are now all adults who had the benefit of Fraser’s significant

20     Smith v Velekof [2022] NZHC 386.

21     Chambers v Chambers [2016] NZHC 583 at [87].

22     Public Trust v Relph [2009] 2 NZLR 377 (HC) at [50].

23     Tod v Tod [2015] NZHC 528, [2015] 3 NZLR 399 at [50]

24     Kelly v Craigie [2020] NZFC 3126 at [52]–[54], [2020] 32 FRNZ 624.

25     Glass v Glass [2022] NZHC 3233 at [69].

capital in their upbringing and assisting in their education. He submits that Fraser’s desire in his final will to provide NZD 600,000 to each adult child (which the defendant has confirmed she will pay), combined with Fraser’s inter vivos gift of the Bradley Hall vendor finance loan (roughly NZD 700,000 each) is consistent with his aim of providing about NZD 1.2 million to each child, expressed in his 2014 will.  Mr Barker submits that, in addition, the evidence is that the plaintiffs stand to inherit significant sums from their mother, and indeed also from the defendant’s own estate. He submits that one of the plaintiffs, Harriet Partridge, has also had the benefit of a GBP 600,000 interest free loan from her mother.

[47]   Ms Bruton submits that the plaintiffs’ FPA claims are clearly meritorious when viewed against the size of the estate, Fraser’s breaches of duty to his adult children, and the fact that Fraser’s last will makes no enforceable provision for them. Ms Bruton further submits that:

(a)it is common ground that the couple’s wealth came from Fraser;

(b)Harriet Partridge’s evidence is that she had a close relationship with her father but experienced an estrangement at the defendant’s behest and the relationship never truly healed;

(c)both Timothy and Nicholas Partridge have uncertain futures and are heavily reliant on the income from the inter vivos assignment to them of the Bradley Hall loan; and

(d)while the defendant’s will currently makes provision for the plaintiffs, this contradicts the defendant’s prior offer to pay each of the plaintiffs

$600,000 if they undertake not to make further claims against the estate or against the defendant or her estate, and the plaintiffs cannot be sure that the defendant will not change her will.

[48]    Ms Bruton submits that in the context of overall property possibly in the order of $30 million, Fraser’s provision of only $1.8 million to his three adult children collectively, whilst the defendant and her daughter will retain the balance is clearly

not the act of ‘a wise and just testator’. She submits that it is particularly so given the poor financial positions of Timothy and Nicholas Partridge and the evidence of estrangement between Fraser and his daughter Harriet Partridge once the defendant came into his life.

[49]   The present case bears some similarities to the cases referred to above where an executor has been held to be in a conflicted position between his or her interest as executor and as surviving spouse. In this case, the defendant is the executor and the surviving spouse of the deceased and has chosen Option B. The bulk of the couple’s relationship/jointly owned property (approximately $24 million) has passed to the defendant by survivorship. There is evidence that the possibility of an application under s 88(2) of the Property (Relationships) Act has been raised by the plaintiffs’ counsel with the defendant’s lawyers, but no evidence that the defendant would consider making an application.26 There is evidence of tension between the defendant and the plaintiffs, particularly Harriet Partridge and Timothy Partridge.

[50]   As to the Family Protection Act claims, the value of the overall property involved is significant, and relatively small provision has been made for the plaintiffs in Fraser’s final will. The health issues and financial positions of Timothy and Nicholas Partridge need to be taken into account, and the estrangement between Fraser and Harriet Partridge. It is not for the Court for at this stage to predetermine whether the threshold of “serious injustice” under s 88(2) is met. However, I do not consider that this is a case where an application for leave and the plaintiffs’ Family Protection Act claims have no prospects of success.

[51]   Overall, I consider that the plaintiffs’ claim under s 21 of the Administration Act and their Family Protection Act claims have sufficient merit to justify leave being granted to apply for summary judgment at this stage.

26 On 13 February 2024, the defendant (as executor) made an interlocutory application for an order that the Court determine a separate question under r 10.15 of the High Court Rules 2016 as to whether 20 per cent of the relationship property should form part of Fraser’s estate. I discuss this application below.

Preliminary question

[52]   The defendant (as executor) submits that the summary judgment approach is unnecessary and that the issues between the parties are better resolved by a decision on a separate question under r 10.15 HCR in the FPA proceeding.

[53]   The defendant’s application seeks the determination of the following preliminary question:

Whether 20% of Ute’s and Fraser’s relationship property should form part of Fraser’s estate.

[54]   Mr Barker submits that a procedure under r 10.15 would be the most effective and efficient way of resolving the core dispute between the parties, being whether the deceased breached his moral duty to the plaintiffs under the Family Protection Act. He submits that the plaintiffs’ motivation for the AA proceeding is for an independent executor to make applications that (if successful) will enlarge the size of the estate to which their Family Protection Act claims (if successful) could attach.

[55]   He submits that the preliminary question is a discrete legal issue which will determine the size of the estate and ought to be determined before a substantive hearing on the FPA proceeding.

[56]Mr Barker submits that there is a choice between two procedural pathways:

(a)efficiently considering all legal issues relating to the size of the estate in one preliminary hearing and obviating the need for the AA proceeding, thereby avoiding the costs and delays of a parallel proceeding with associated interlocutory applications; or

(b)after various interlocutory applications are resolved, the potential replacement of the defendant with an independent executor (subject to appeal) who will take time to read into the matter and charge significant fees, with the parties undoubtedly ending up back in front of the Court for separate hearings each time an application by the independent

executor is challenged by the defendant (in her personal capacity), as she is likely to do.

[57]   Mr Barker submits that there are various practical considerations that favour a hearing of the preliminary question and the refusing of leave to bring a summary judgment application:

(a)removing the need for the AA proceeding will enable costs and time savings for the parties involved and for court resources;

(b)resolving the preliminary question will likely bring the proceeding to an end as the Court’s decisions will likely determine the size of the estate, enabling the parties to achieve a negotiated solution or, alternately, it will shorten and simplify any subsequent substantive hearing; and

(c)it is best to resolve the discrete legal issues relating to the size of the estate without appointing an independent executor, with experienced counsel on both sides who are currently read into the matter and live to the issues contained in the preliminary question.

[58]   Ultimately, Mr Barker submits that the determination of the preliminary question is more cost effective in the context. He submits that the cost and delay in appointing an independent executor would be significant, and would not achieve the just, speedy and inexpensive determination of the dispute between the parties.

[59]    There are two reasons why I do not consider that the determination of the preliminary question put forward by the defendant should be the preferred procedural pathway at this stage of the proceeding.

[60]   First, it seems to me that the determination of a preliminary question at this stage as an alternative procedural pathway to the summary judgment application side-steps a fundamental issue raised by the AA claim. That is, as discussed above, whether the defendant (as executor) finds herself in a position of conflict, as between

her own interests on the one hand and those of the plaintiffs on the other such that, coupled with the evidence of tension between the defendant and some of the plaintiffs, the Court needs to appoint an independent executor. Issues of efficiency and cost are of course important. However, the Court needs to be satisfied that the defendant (as executor) is able to bring to bear on her role an impartial approach which properly reflects the even-handedness an executor must apply to the interests of all beneficiaries in the estate.27 This will impact on issues such as the ongoing provision of relevant information before the Court and proper accounting in respect of the estate. I do not consider that consideration of this issue can be bypassed by substituting the determination of a preliminary legal question as an alternative procedural pathway.

[61]   Second, I am not satisfied that the preliminary question put forward by the defendant (as executor) captures the full scope of the construction issues raised by the plaintiffs. These issues go beyond whether 20 per cent of the relationship property should form part of Fraser’s estate. The plaintiffs contend that, even if the defendant was entitled to choose Option B, then the COA may have ceased to have any force or effect, and the entire pool of jointly owned property may come into the mix, and possibly some of the separate property reserved to the defendant under the COA.

Conclusion

[62]   For the reasons set out above, I consider that leave should be granted to the plaintiffs to apply for summary judgment in the AA proceeding. The plaintiffs’ claim has sufficient merit to outweigh any unexplained delay in the bringing of the application. There is no real risk of miscarriage of justice in hearing the application for summary judgment at this stage.

[63]   The defendant’s application for determination of a preliminary question as an alternative procedural pathway should be dismissed. This is because, for the reasons set out above, I do not consider that determination of the preliminary question obviates the need for determination of the AA proceeding. Further, I do not consider that the preliminary question put forward by the defendant captures the full scope of the construction issues raised by the plaintiffs.

27     Farnsworth v Farnsworth HC Auckland, M.1767/97, 12 January 1999 at 16.

[64]   However, the dismissal of the application for determination of a preliminary question as an alternative procedural pathway at this stage should not be taken as meaning that determination of a preliminary question may not be appropriate at a later stage in these proceedings.

Result

[65]   The plaintiffs’ application for leave to apply for summary judgment in CIV-2023-485-141 is granted.

[66]   In accordance with the orders made by Ellis J on 12 June 2023, leave is granted that evidence filed in CIV-2022-485-774 may be read in CIV-2023-485-141 in the context of the application for summary judgment. 28

[67]   The application by the defendant (as executor) for orders for determination of a preliminary question under r 10.15 of the High Court Rules 2016 in CIV-2022-485- 774 and CIV-2023-485-141 is dismissed.

[68]   My preliminary view is that the plaintiffs have been successful on both applications and are entitled to costs on a 2B basis and reasonable disbursements. If any party disagrees with this preliminary view, then memoranda may be filed not exceeding three pages (excluding costs schedules) and costs will be determined on the papers. Otherwise, it is expected that the parties should be able to agree costs.

[69]   The matter is to be listed in the next Associate Judge’s chambers list for Wellington for directions to be given as to the hearing of the plaintiffs’ summary judgment application.

Associate Judge Skelton

Solicitors:

Daniel Overton & Goulding, Auckland for Plaintiffs Buddle Findlay, Wellington for Defendant

28     Minute of Ellis J, above n 1, at [1(b)].