Raymond v Ngaruhe
[2015] NZHC 2632
•28 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-485-603065 [2015] NZHC 2632
UNDER Section 21, Administration Act 1969 IN THE MATTER
of the Estate of Colin Richard Raymond of
754 Runciman Road, Drury, Retired
Company Director (Deceased)BETWEEN
BARRY DEAN RAYMOND AND GLEN ROBERT RAYMOND
Applicants
AND
JA'EL DI'NAH NGARUHE Respondent
Hearing: 22 October 2015 Appearances:
M I S Phillips for Applicants
J L W Green for RespondentJudgment:
28 October 2015
JUDGMENT OF HINTON J
This judgment is delivered by me on 28 October 2015 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Counsel:
J L W Green, Barrister, Auckland
M I S Phillips, Barrister, Auckland
RAYMOND AND RAYMOND v NGARUHE [2015] NZHC 2632 [28 October 2015]
Introduction
[1] This judgment relates to fairly common interlocutory applications arising out of an unusual fact scenario.
Background
[2] Colin Raymond made a will dated 8 June 2011 leaving his estate to his sons, Barry, Wayne and Glen Raymond and to the Raymond Family Trust. Under the will, Barry and Glen are executors and trustees. Colin Raymond married the respondent Ja’el Di’nah Ngaruhe on 3 June 2014. He died two weeks later on 17 June 2014.
[3] The will was prima facie revoked by virtue of the marriage.
[4] Barry and Glen Raymond (“the Raymond brothers”) are applicants in this and related proceedings. Ms Ngaruhe is the respondent in the various proceedings.
[5] It seems that there is limited value in the estate, especially after repayment of debts, including a debt owed to the Raymond Family Trust. The real value is in the Raymond Trust, of which the sons and not Ms Ngaruhe are beneficiaries.
[6] On 10 February 2015, the Raymond brothers filed an application in the Papakura Family Court for an order declaring Ms Ngaruhe’s marriage to the deceased void ab initio. This novel application is on the basis there is an absence of consent to the marriage on the part of the deceased by reason of duress and insanity. Predictably, Ms Ngaruhe has filed a notice of defence to that Family Court application.
[7] On 30 March 2015, Ms Ngaruhe filed an application for grant of letters of administration on intestacy in common form in the High Court in Wellington. That application was made without notice to the Raymond brothers. In support of the application, she filed an affidavit stating that the deceased died without leaving a will and that as the surviving spouse, she is entitled to the first $155,000 of the estate. She said that as the estate was likely to be under $155,000 she was the only person
who would benefit from it. Ms Ngaruhe’s solicitor signed and certified the application as correct.
[8] On 24 April 2015, the High Court granted letters of administration and appointed Ms Ngaruhe as administrator of the whole of the deceased’s estate, on the basis that the deceased died intestate.
[9] The Raymond brothers then brought an application filed under the Wellington proceeding, seeking orders for the recall of the grant of administration under r 27.34. As that application was opposed, it no longer fell within r 27.34 and the application was dismissed by Faire J on 27 July 2015. In that same proceeding, the Raymond brothers also sought other orders, including for appointment of a temporary administrator.
[10] As directed by Faire J, the Raymond brothers subsequently filed a notice of proceeding and statement of claim on 18 August 2015. They plead that Ms Ngaruhe’s affidavit and her solicitor’s certification were intentionally misleading and an abuse of process because they did not refer to the will dated 8 June 2011, nor to the Family Court application. They say that the grant of administration would not have been made if the Court had been informed of these two matters. In their statement of claim the Raymond brothers seek the removal of Ms Ngaruhe as administrator under s 21 of the Administration Act 1969 and an order recalling the grant of letters of administration on intestacy under the Court’s inherent jurisdiction. As with the other two sets of proceedings, this one is defended.
[11] The current application for interlocutory orders was filed on 18 August 2015.
The interlocutory applications
[12] The Raymond brothers initially applied for four orders: (a) To consolidate proceedings;
(b)To direct that the substantive hearing proceed by way of affidavit evidence;
(c) To restrain Ms Ngaruhe from taking any steps in the administration of the estate; and
(d)To require Ms Ngaruhe to file and serve an affidavit as to the financial position of the estate.
[13] Two of the issues have been resolved. The parties, by way of a joint memorandum dated 16 October 2015, record that the remaining orders sought are to:
(a) Consolidate this “proceeding” with the Wellington High Court proceeding; and
(b)Restrain Ms Ngaruhe from taking any steps in the administration of the estate and from making any distribution from the estate until further order of the Court.
[14] There is also an issue of costs.
Discussion
Consolidation
[15] In the Wellington High Court proceeding, the Raymond brothers sought:
(a) An order recalling the grant of letters of administration under s 27.34; (b) An order for grant of probate in common form to themselves or
alternatively, an order for grant of letters of administration to themselves; and
(c) An order appointing William Patterson as a temporary administrator.
[16] When the Raymond brothers then filed their notice of proceeding and statement of claim, as directed by Faire J, they obviously intended it to be a new proceeding but they filed in the Wellington High Court. This proceeding, not being
an application for probate or for grant of letters of administration, needed to be filed in the registry where the estate is held, namely Auckland. Instead of rejecting the document, the Wellington registry accepted them for filing onto the existing file. The whole file was then transferred to Auckland for hearing. So while there should be two separate CIV numbers, there is only one.
[17] I have to approach the matter as if there are two separate CIV numbers in order to correct the irregularity. Consolidation was opposed by Ms Ngaruhe on the basis that the two proceedings deal with different issues and should be separate considered.
[18] The remaining parts of the earlier proceeding (dealing with the grant of probate/administration to the Raymond sons and the appointment of a temporary administrator) remain live.
[19] Rule 10.12 provides:
10.12 When order may be made
The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—
(a) that some common question of law or fact arises in both or all of them; or
(b) that the rights to relief claimed therein are in respect of or arise out of—
(i) the same event; or
(ii) the same transaction; or
(iii) the same event and the same transaction; or
(iv) the same series of events; or
(v) the same series of transactions; or
(vi) the same series of events and the same series of transactions;
or
(c) that for some other reason it is desirable to make an order under this rule.
[20] The two “proceedings” arise out of the same event and it would be clearly appropriate to consolidate. Both proceedings are about who is to administer the estate. The later statement of claim seeks Ms Ngaruhe’s removal as administrator. It makes sense to deal with the appointment of any temporary administrator at the same time. The statement of claim also seeks the recall of the grant of administration. The earlier proceeding sought the grant of administration or probate to the Raymond brothers. Again it would be appropriate to consider these issues together.
[21] I note that Ms Ngaruhe challenges the propriety of the Raymond brothers seeking the Court’s inherent jurisdiction to recall the grant of administration. However, this is an interlocutory hearing and not the appropriate time to consider arguments that address the merits of the substantive claim.
[22] When I expressed my view on consolidation, Mr Green advised that his client would not oppose the consolidation order.
[23] If necessary, the Auckland Registry can allocate a separate CIV number to what should have been the Auckland proceeding.
Application to restrain
[24] The status quo is that Ms Ngaruhe is the Court appointed administrator, which is clearly contested.
[25] The concern of the Raymond brothers is that, under s 47 of the Administration Act 1969, Ms Ngaruhe can distribute the estate, without incurring liability, after the expiration of six months from the date of the grant of administration. That period will elapse on 24 October 2015. Ms Ngaruhe will then be able to make a distribution of up to $155,000 from the estate to herself as surviving spouse on intestacy. She could also exercise a power of appointment under the trust deed to appoint herself a trustee of the Raymond Family Trust.
[26] Ms Ngaruhe has stated repeatedly since these proceedings were initiated, that she is willing to give an undertaking to the High Court that she will not make any distribution of the estate until the determination of the Family Court proceeding.
She also undertakes that she will consent to an application recalling the letters of administration if the Family Court declares the marriage to be void ab initio. She would of course need to do that, as the will would then stand.
[27] On 21 September 2015, Ms Ngaruhe’s solicitor wrote to the Raymond brothers setting out the undertakings. The letter suggested that the High Court application be withdrawn on the basis that any concerns will be met by the undertakings. That offer was not taken up.
[28] In my view there should be a formal order. I can understand the Raymond brothers considering it to be advisable to have an order in place in the circumstances in which Ms Ngaruhe unilaterally obtained the grant of administration. I am satisfied there is an arguable case to challenge that grant and that the requirements for injunctive relief are met. I also consider it to be appropriate in the context of the administration of estates for there to be an order in place, rather than an undertaking.
[29] When I expressed those views in Court, Mr Green said Ms Ngaruhe would consent to the making of a restraining order, given it is entirely consistent with her approach to the matter anyway.
Conclusion
[30] I therefore make the following orders:
(a) The proceeding commenced by notice of proceeding and statement of claim filed on 18 August 2015 is consolidated with CIV-2015-485-
603065 and the two are to be heard together.
(b)By consent, Ms Ngaruhe is restrained from taking any steps in her capacity as administrator of the estate of Colin Richard Raymond and from making any distributions from the estate of Colin Richard Raymond, until further order of the Court.
[31] The parties have agreed and I so order, that the substantive hearing of the consolidated proceedings will proceed by way of affidavit evidence and for timetable
directions to be made, but they also agree that directions are not to be made at present.
[32] As a result of discussions during the hearing, the parties also agree and I direct accordingly that there be a half day judicial settlement conference before me on Monday 15 December 2015 at 10.00 am with a view to settling all issues including the Family Court proceedings. I note the following regarding the settlement conference:
(a) If matters settle, the Raymond brothers will not seek an order declaring the marriage void, their concern is rather to settle all financial issues.
(b)The standard directions set out in the Practice Note will apply, including as to will say statements.
(c) The intention will be to conclude the settlement with consent orders, not by way of an agreement.
(d)The parties may need to forward relevant documents from the Family Court file to this Court in advance of the judicial settlement conference.
(e) Both sides must provide relevant documents to each other in advance, including in particular documentary proof of the loans from the Raymond Family Trust to Colin Raymond and any estate debts paid by the Trust on behalf of the estate.
(f) The parties themselves must attend and the deceased’s solicitor would obviously be useful. If anyone else is to attend, the parties should consider whether their attendance will be conducive to settlement.
Costs
[33] I reserve all questions of costs, to be determined if and when the substantive proceeding is heard.
Hinton J
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