Sharma v Sharma

[2017] NZHC 1476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-485-610575 [2017] NZHC 1476

UNDER

the Wills Act 2007 and the Administration

Act 1969

IN THE MATTER

of the ESTATE OF RAM PADARATH SHARMA of Auckland, New Zealand, Businessman, Deceased

BETWEEN

SHAKUNTLA SHARMA Plaintiff

AND

NEIL KANT SHARMA Defendant

Hearing:	On the papers
Counsel:	S Ebenezer for Plaintiff S Bennett for Defendant
Judgment:	29 June 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 29 June 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Parshotam Lawyers, Auckland

David Brown & Associates

SHARMA v SHARMA [2017] NZHC 1476 [29 June 2017]

[1]      I have before me a without notice application for order nisi for the grant of letters of administration with a will annexed, in circumstances where a caveat has been lodged.

[2]      It transpires that the application has been discussed between the plaintiff and the caveator, Neil Kant Sharma. They have reached agreement as to the resolution of this matter.  As explained in the joint memorandum of counsel, Mr Ram Padarath Sharma died in Auckland on 25 June 2016.  His sole surviving son, the defendant, lodged a caveat in this Court on 29 August 2016.  The plaintiff, Shakuntla Sharma, also lodged a caveat in this Court on or around 28 September 2016.

[3]      On or around 2 March 2017, the plaintiff lodged an application for order nisi for the grant of letters of administration in her favour on the grounds that she is the surviving de facto partner of the deceased, and first entitled to a grant.  The plaintiff contemporaneously withdrew her caveat.   The order nisi was granted in terms of r 27.14 of the High Court Rules 2016 on 9 March 2017.

[4]      The nature of the plaintiff’s relationship with the deceased is disputed by the defendant and he maintains that he is, in fact, entitled to the grant of the administration in his favour.   The defendant has not removed his caveat and the matter has been timetabled for the filing of evidence and allocation of a hearing.

[5]      Pending determination of the caveat matter and the plaintiff’s application for a grant, an order was made by consent that Donald Thomas of Thomas & Co, solicitor,  be appointed  interim  administrator  (“the interim  administrator”) of the deceased estate, pursuant to s 7 of the Administration Act 1969.  To date, neither the plaintiff, defendant nor any third party have filed any substantive application in any court for provision from the estate and these proceedings only deal with the issue of grant of administration, and the caveat lodged by the defendant.

[6]      A compromise has been reached between the plaintiff and the defendant. They are in agreement that it would be unnecessary to litigate the matter and cause unnecessary expense to the parties in the estate when the interim administrator could act on a permanent basis.

[7]      The joint memorandum records that the compromise agreed by the parties is entirely without prejudice to any and all claims and cross-claims available to either party in respect of the provision of the estate, including any possible claims under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949, Property (Relationships) Act 1976, Administration Act 1969, at law, in equity or otherwise.

[8]      The parties record their agreement as follows:

10.1The plaintiff reserves her rights and remedies as the de facto partner of the deceased; and

10.2     The defendant reserves his right to dispute the nature and existence

of the plaintiff’s relationship with the deceased; and

10.3Pending final determination of any substantive application(s) made by either party, they are both entitled to receive and obtain all necessary information and disclosures in respect of the estate from the interim administrator and neither party shall seek to deny the other party’s access to that information for any reason whatsoever.

[9]      Given the foregoing, the parties seek the following orders:

(a)       An order making the appointment of the interim administrator, dated

28 April 2017, final.

(b)An order that the defendant shall withdraw the caveat that was lodged by him in order for the interim administrator’s appointment to be made final.

(c)      An order that the plaintiff shall not proceed with her application for a grant of administration, thereby allowing the interim administrator’s appointment to be made final.

(d)An order that the parties shall bear their own costs in respect of these proceedings and the implementation of this compromise.

Assessment

[10]     Given the consent of the parties to the orders sought, I am satisfied, pursuant to s 6(2) of the Administration Act 1969, that in the special circumstances of this case it is appropriate to grant the letters of administration as sought by the parties. They are both in agreement that the Court should make the interim administrator’s appointment permanent.  I agree that it is in the best interests of the estate to allow Mr Thomas to carry on as administrator, to avoid unnecessary costs to the parties as well as the estate.   Mr Thomas has provided his consent to be appointed as administrator on a permanent basis. In accordance with s 6(4), I consider that Mr Thomas is competent to effectively administer the estate, and that his appointment is in the best interest of all persons interested in the estate, namely the plaintiff and defendant.

[11]     There shall be orders accordingly.