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…

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 Rushton v Guthrie

Details

AGLC: Rushton v Guthrie [2023] NZHC 2983
Case: [2023] NZHC 2983
Decision Date: 26 October 2023

CaseChat Overview and Summary

Rushton v Guthrie was an action brought by Kerry Maria Rushton against the executors of her mother, Beverley Ann Rushton’s, estate. Kerry sought to be appointed as a trustee in place of the executors and to be reimbursed for expenses she claimed to have incurred on behalf of the estate. The executors sought summary judgment and/or to strike out Kerry’s claim, as well as an order for the sale of a property at Forbury Road, Dunedin, which she co-owned with the executors. Associate Judge Paulsen found that while Kerry’s claim for reimbursement of expenses was not without arguable merit, it was deficient and could be amended to advance a good cause of action. The application to remove the executors was hopeless and was struck out. The application for an order for the sale of the Forbury Road property was granted and the property was ordered to be sold. Further orders in relation to the method of sale and division of proceeds were reserved for later determination.

Orders