Porter v Fordham

[2021] NZHC 3148

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-000027

[2021] NZHC 3148

BETWEEN

PRISCILLA AINSLEY PORTER

Plaintiff

AND

EMILY CLAIRE FORDHAM and MEREDITH ANNE MITI

Defendants

Hearing:

27 August 2021

Appearances:

D J More for the Plaintiff

L A Andersen QC for the Defendants

Judgment:

22 November 2021

JUDGMENT OF NATION J

[1]    The plaintiff and her deceased husband lived together for some 23 years before his death in October 2019. The plaintiff did not benefit under his will. She gave notice to the administrator of the deceased’s estate that she would be making a claim under the Property (Relationships) Act 1976 (PRA).

[2]    The defendants are the deceased’s daughters. Under the deceased’s will, they were entitled to share equally in the residue of his estate.

[3]    The three month time limit for filing proceedings, as referred to in s 48(1) of the Administration Act 1969, had expired in September 2020. The one year time limit for the plaintiff to file proceedings under the PRA expired on 23 December 2020.

PORTER v FORDHAM & MITI [2021] NZHC 3148 [22 November 2021]

[4]    On 16 February 2021, a transmission of the title to what had been the family home to the administrator of the deceased’s estate was registered. On the same day, the administrator registered a transfer of the title to the two beneficiaries in equal shares.

[5]    On 22 April 2021, the High Court made a freezing order on a without notice basis requiring the proceeds of sale from the former family home to be held in the trust account of the solicitor acting in the administration of the estate. The freezing order was to “remain in place until any proceedings issued by the plaintiff under the Property (Relationships) Act 1976 have been determined or other order of this Court is made”.

[6]    On 20 May 2021, the beneficiaries filed an interlocutory application for an order setting aside the freezing order. The plaintiff opposed that application.

[7]    There was a hearing of that application on 27 August 2021. Since then, the Court has called for certain submissions to address particular limitation issues in respect of which there were no submissions during the hearing. It is likely that a final judgment on the application will not be released until late December 2021.

[8]    During the hearing, the Court raised with counsel the possibility for a portion of the funds currently frozen to be released. This was because the freezing order was made to ensure that funds from the sale of the property would be held to meet the plaintiff’s potential PRA claim and it seemed that her potential claim would be as to only one-half of the net proceeds of the sale from the home.

[9]    In a memorandum of 6 September 2021, counsel for the plaintiff, Mr More, advised that the amount currently being held pursuant to the freezing order was

$470,722.02. Half of that sum is $235,361.01. Mr More submitted that, in addition  to that sum, an amount should be held for costs should the plaintiff be successful in her relationship property claim. He said the balance may be discharged from the freezing order.

[10]   By memorandum of 26 October 2021, counsel for the defendants, Mr Andersen QC, said it was for the Court to determine what, if any, amount should be withheld for costs. However, he said the defendants would appreciate release of any portion of the funds held because of debts they had incurred in connection with the estate.

[11]   I was not advised what the amount of those debts might be. In the evidence for the hearing, I was told there was potentially a liability from the deceased and his estate to the plaintiff’s sister for AUD13,000, a potential liability in part to the plaintiff for $16,788 and potentially a further $15,000 in connection with a loan made to both the deceased and the plaintiff associated with the home they were building.

[12]   Against that background, I make an order that the freezing order of the High Court made on 22 April 2021 be varied in that $150,000 of the monies subject to the freezing order is no longer to be subject to that freezing order and can be released to the defendants personally.

[13]   This is an interim judgment. The Court expects to release its final judgment on the application to set aside the freezing order before the end of this year, once the further submissions have been received for the parties.

Solicitors:

LA Anderson QC, Barrister, Dunedin D J More, Barrister, Dunedin.