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Ridley v Mulholland

Ridley v Mulholland

Case [2022] NZHC 1007 12 May 2022

Administration Act 1969

Administrator Removal

Order for Vacant Possession

Res Judicata

Unjust Enrichment

Interest on Reverse Mortgage

Breach of Fiduciary Duty

Succession Law

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-419-196

[2022] NZHC 1007

BETWEEN
CATHERINE JANE RIDLEY

Plaintiff

AND

GREGORY KENNETH MULHOLLAND

Defendant

Hearing: 9 May 2022

Appearances:

JS Gurnick for the Plaintiff UA Kuddus for the Defendant

PA Depledge for Stephen Mulholland

Judgment:

12 May 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 12 May 2022 at 11 am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors: V Woodhams, Vosper Law, Cambridge

U Kuddus, Patel Nand Legal, Penrose

Counsel: JS Gurnick, Barrister, Hamilton
PA Depledge, Barrister, Hamilton

RIDLEY v MULHOLLAND [2022] NZHC 1007 [12 May 2022]

[1]Jocelyn Mulholland died on 1 October 2020.

[2] Mrs Mulholland’s daughter, Catherine Ridley, and son, Gregory Mulholland,1 are the administrators of their mother’s estate. They are also, respectively, the plaintiff and defendant in this proceeding.

[3] The main asset of the estate is Mrs Mulholland’s residential home in Manurewa, Auckland (the property). Gregory lived in the property with his mother prior to her death. He has continued to occupy the property since 1 October 2020 on a rent-free basis.

[4] Catherine applies to remove Gregory as an administrator of Mrs Mulholland’s estate.2 She also seeks an order for vacant possession of the property. Catherine says Gregory has refused to co-operate in the sale of the property.

[5]Gregory opposes the application.

Factual background

[6] Catherine and Gregory are two of Mrs Mulholland’s three adult children. The third is a brother, Stephen.3

[7] Mrs Mulholland died on 1 October 2020, leaving a will dated 31 May 2004 (the Will). In the Will, Mrs Mulholland appointed Catherine and Gregory as executors and trustees of her estate. The Will provided that after the trustees had paid debts, funeral expenses and any duties the residue was to be divided equally between Catherine, Gregory and Stephen. Probate of the Will was granted on 4 December 2020 and Catherine and Gregory were appointed administrators of their mother’s estate.

[8] Gregory was living with his mother in the property at the time of her death. He had been living there since approximately 2014. He did not pay rent while he was living with his mother. He says she did not expect that. Gregory acknowledges that

1      There is another sibling who is referred to below. To avoid any confusion I will refer to the three siblings by their first names. No disrespect is intended by the use of first names.
2      Pursuant to the Administration Act 1969, s 21.
3      Stephen filed an appearance reserving rights. He supports Catherine’s application.

he has continued to live in the property and has not paid rent to the estate since his mother’s death.

[9] At some stage prior to her death (it is not clear when) Mrs Mulholland took out a reverse mortgage with Heartland over the property. A letter from Heartland to Catherine dated 4 January 2021 says:

The current balance owing on…

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 Ridley v Mulholland

Details

AGLC: Ridley v Mulholland [2022] NZHC 1007
Case: [2022] NZHC 1007
Decision Date: 12 May 2022

CaseChat Overview and Summary

In the case of Ridley v Mulholland, the plaintiff, Catherine Ridley, sought to remove the defendant, Gregory Mulholland, as an administrator of their mother's estate and to obtain an order for vacant possession of the property. The legal issues before the court were whether Gregory should be removed as an administrator under section 21 of the Administration Act 1969 and whether an order for vacant possession of the property should be made. The court considered the principles guiding the removal of an administrator, including the duty to see estates properly administered and trusts properly executed. The court found that Gregory's actions, including living in the property rent-free and failing to contribute to the sale of the property, were breaches of his obligations as an administrator. The court also considered the interests of the beneficiaries and the need to achieve a fair value for the property. In light of the evidence, the court concluded that Catherine's application to remove Gregory as a trustee should be granted. The court further considered whether an order for vacant possession should be made to facilitate the sale of the property. The court found that Gregory did not have a legal entitlement to continue to occupy the property and that an order for vacant possession was appropriate. The court ordered that Gregory be removed as an administrator of the estate and that he must vacate the property by 12 July 2022, unless an extension is agreed upon by Catherine on behalf of the estate.

Orders