Sillick v Sillick - [2017] NZHC 1969

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2017-488-000038

CIV-2017-488-000039 [2017] NZHC 1969

BETWEEN
FRANZINA DE ANNA SILLICK

Applicant/Plaintiff

AND

BRIAN EARL SILLICK Respondent/First Defendant

AND

DAWN KELLY SILLICK Interested Party/Second Defendant

Hearing: 7 August 2017

Appearances:

A Fuiava for the Applicant/Plaintiff

No appearance by or for the Respondent/First Defendant The Interested Party/Second Defendant in Person, with the assistance of R McDowell, McKenzie Friend and her daughter, Jatheena Sillick

Kura Heke, Interested family member

Judgment:

17 August 2017

INTERIM JUDGMENT OF HINTON J

This judgment was delivered by me on 17 August 2017 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Solicitors:
Denham Bramwell, Manukau

Parties: Brian Sillick Dawn Sillick

FRANZINA DE ANNA SILLICK v BRIAN EARL SILLICK [2017] NZHC 1969 [17 August 2017]

[1] Franzina Sillick, as one of two executors, is seeking an order for transfer of

193 Okahu Road, Kaitaia into the names of three beneficiaries. As one of those beneficiaries, she also seeks an order for sale under s 339 of the Property Law Act
2007.

[2] Both applications were set down for formal proof on 7 August 2017, but the second defendant and others appeared at the hearing. It is only possible to finalise the application for transfer in this judgment.

[3] There are issues around the application for sale. There are three beneficiaries with quite different wishes, and the deceased did not want the property sold. The family is Māori. The property may be viewed by some at least as their
tūrangawaewae. I cannot make orders today, but I did hear from the parties at some length and some progress is possible.

Background

[4] Franzina Sillick is an executor of her grandmother, Lucy Sillick’s estate.

[5] The respondent, Brian Sillick, is Lucy’s son (Franzina’s uncle) and also the co-executor of the estate.

[6] Brian Sillick has not taken any formal steps in these proceedings.

[7] The interested party/second defendant, Dawn Sillick, is Lucy’s daughter

(Franzina’s aunt).

[8] Lucy Sillick died on 8 December 2010 in Kaitaia. Franzina and Brian were the only beneficiaries under the Will. The only asset held by the estate is the property at Okahu Road, Kaitaia.

[9] Brian unilaterally moved into the property after Lucy died.

[10] Franzina and Dawn attended this hearing. Also present in Court were Dawn’s

daughter, Jatheena Sillick; Robert McDowell, who I believe is a nephew of Lucy and

who was present as a McKenzie Friend for Dawn; and Kura Heke, who describes herself as an aunty.

[11] Franzina, Dawn, Ms Jatheena Sillick and Mr McDowell all live in Auckland. Brian and Ms Heke live in Kaitaia.

[12] Dawn brought a family protection claim against the estate which was granted by Judge McHardy in the Family Court at Auckland on 7 May 2014, with Franzina’s consent (and non-engagement by Brian). As a consequence, Franzina receives
37.5 per cent; Brian receives 37.5 per cent and Dawn receives 25 per cent of the estate.

[13] In addition, a clause was…

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 Sillick v Sillick

Details

AGLC: Sillick v Sillick [2017] NZHC 1969
Case: [2017] NZHC 1969
Decision Date: 17 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Franzina De Anna Sillick sought an order for the transfer of the property at 193 Okahu Road, Kaitaia, into the names of the beneficiaries, and an order for sale of the property. The property was the sole asset of the estate of Lucy Sillick, who died on 8 December 2010. Franzina, as one of the executors of the estate, sought the orders against Brian Earl Sillick, the co-executor, and Dawn Kelly Sillick, a beneficiary. The issues to be decided by the court were whether the property should be transferred to the beneficiaries and, if so, under what terms, and whether the property should be sold. The court was also required to consider the appropriate forum for the proceedings and any other directions that may be necessary. The court found that it was appropriate for the property to be transferred to the beneficiaries and made an order for transfer under section 52 of the Trustee Act 1956. The court found that the application for sale was more difficult and adjourned the matter to allow the parties to explore alternative solutions. The court also directed that the proceedings be transferred to the Auckland Registry and gave directions for further steps to be taken by the parties.

The court found that the application for transfer was straightforward and should be granted. The court noted that the beneficiaries had completed all relevant documents and that Brian had not taken any steps to oppose the transfer. The court found that the appropriate authority for the order was section 52(1)(g) and/or (h) of the Trustee Act 1956. The court therefore made an order transferring the property into the names of the beneficiaries. The court found that the application for sale was more difficult and required further consideration. The court noted that Lucy had expressed a wish that the property not be sold and that it be kept in the Sillick family. The court also noted that the condition of the property was deteriorating and that there were mounting debts against the estate. The court found that Dawn’s opposition to the sale was valid and that it was not appropriate to proceed with the matter by formal proof in those circumstances. The court therefore adjourned the matter to allow the parties to explore alternative solutions. The court also directed that the proceedings be transferred to the Auckland Registry and gave directions for further steps to be taken by the parties.

Orders