IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2022-412-066
[2023] NZHC 2983
UNDER the Trusts Act 2019 and Property Law Act 2007 IN THE MATTER
of the Estate of Beverley Ann Rushton
BETWEEN
KERRY MARIA RUSHTON
Plaintiff/First Counterclaim Defendant
AND
JENNIFER ANNE GUTHRIE and CHRISTOPHER WILLIAM RUSHTON
Defendants/Counterclaimants
JONATHAN ANDREW BROWN
Second Counterclaim Defendant
Hearing: 20 September 2023 Appearances:
G A Paine for Plaintiff/First Counterclaim Defendant R M Reeve for Defendants/Counterclaimants
Judgment:
26 October 2023
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 26 October 2023 at 2.15 pm pursuant to rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
RUSHTON v GUTHRIE [2023] NZHC 2983 [26 October 2023]
Introduction
[1] Beverley Ann Rushton (Beverley) died on 9 January 2018 leaving six children and also grandchildren.
[2] The plaintiff/first counterclaim defendant, Kerry Maria Rushton (Kerry), is one of Beverley’s children.
[3] The defendants/counterclaim plaintiffs, Christopher William Rushton (Christopher) and Jennifer Anne Guthrie (Jennifer), are the executors and trustees of Beverley’s last will.1 Christopher is Beverley’s grandson and Kerry’s son.
[4]Kerry has another son named Shawn Richard Driscoll (Shawn).
[5] The second counterclaim defendant, Jonathan Andrew Brown (Jonathan), is Beverley’s brother.
[6] The relations between some family members are dysfunctional and the administration of Beverley’s estate has been plagued by litigation. The administration is now almost complete, but two matters remain outstanding.
[7] First, in this proceeding Kerry applies to remove the executors and to replace them with a corporate trustee. She also claims reimbursement for expenses she says she has incurred on behalf of the estate.
[8] Second, Kerry and Jonathan are co-owners with the executors of a property at Forbury Road, Dunedin. They have an option to purchase the executors’ interest in the property, but have not exercised it. The executors are seeking an order for the sale of the property, so that the estate can be wound up and a final distribution made to the residuary beneficiaries.
[9] This judgment concerns an application by the executors seeking summary judgment and/or strike out of Kerry’s claims, and summary judgment on their
1 I will refer to Christopher and Jennifer together as “the executors”.
counterclaim for an order for sale of the Forbury Road property under s 339 of the Property Law Act 2007.2
[10] Kerry has opposed the executors’ applications. Jonathan has not taken any part in this proceeding.
[11]The issues that arise are broadly stated as:
(a)whether Beverley’s statement of claim should be struck out in whole or in part as disclosing no reasonable cause of action;3 and
(b)whether the executors have satisfied their onus that Beverley and Jonathan have no arguable defence to the application for an order for sale of the Forbury Road property.4
Background
[12] The executors were granted probate of Beverley’s last will and codicil on 27 June 2018.
[13] At the time of her death Beverley was living in a rest home, but for many years previously she lived…
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