Southgate v Cameron - [2025] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-160

[2025] NZHC 1968

UNDER the Administration Act 1969 and Parts 19 and 27 of the High Court Rules 2016

IN THE MATTER OF

the estate of Thomas Edrich Southgate

BETWEEN

JANENE HELEN SOUTHGATE and TODD EVAN SOUTHGATE

Applicants

AND

ANNE STEWART CAMERON and ROGER GERARD DOWNEY

Respondents

Hearing: 1 July 2025

Counsel:

J J Pietras for Applicants

No appearance for Respondents

Judgment:

17 July 2025

JUDGMENT OF GRAU J

(Application to replace executors)

[1] This is an originating application seeking orders that letters of administration with Will annexed be granted to Bryce John Williams (or another appropriately qualified solicitor) instead of the named executors. An order is also sought for the production of the original Will to enable the replacement executor to apply for administration.

[2] The application is made by the children of Thomas Southgate (Thomas), who passed away in February 2024. Under Thomas’ last known Will of 6 September 2021, the respondents, Anne Cameron (Annie), Thomas’ surviving de-facto partner, and Roger Downey (Roger), Thomas’ former solicitor, were appointed as executors.

SOUTHGATE and v CAMERON and [2025] NZHC 1968 [17 July 2025]

[3] The application has been made because Thomas’ children, Janene and Todd, consider that Annie and Roger have an incurable conflict of interest, both in terms of administering the estate and in exercising the power of appointment under the Trust Deed for the Tom Southgate Family Trust (the Trust).

[4] The two respondents were both served with the application on 28 March 2025. Roger’s response was to indicate he wished to renounce as executor immediately. Annie originally indicated she wished to oppose the application. However, she confirmed, via her counsel on 28 April 2025, that she would abide the decision of the Court.

[5] Accordingly, Radich J directed that the matter would proceed by way of formal proof.

Background to the application

[6] On 5 December 2002, Thomas settled the Trust as part of his overall succession planning and to ensure that his children would be provided for after he died.

[7] The discretionary beneficiaries of the Trust included Thomas, his children, Janene and Todd, and Todd’s children, as well as any other person appointed by Deed. Janene, Todd and Todd’s children are still beneficiaries of the Trust.

[8] The Trust Deed vests the power of appointment and removal in Thomas’ executors upon his death and it requires a minimum number of two trustees. Before Thomas died, the two trustees were Thomas and his accountant, Robin Barrie. Mr Barrie is presently the sole trustee.

[9] Not long after setting up his Trust, Thomas purchased his home at 63 Convent Road, Otaki (63 Convent Road), which was later transferred to the Trust.

[10] The following year, Thomas met Annie. She later moved in with him at 63 Convent Road.

[11] In 2005, the Trust transferred ownership of 63 Convent Road to Thomas and Annie as joint tenants. According to…

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 Southgate v Cameron

Details

AGLC: Southgate v Cameron [2025] NZHC 1968
Case: [2025] NZHC 1968
Decision Date: 17 July 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Southgate v Cameron involved an application by the children of the deceased, Thomas Southgate, seeking to replace the named executors of their father's estate. The applicants, Janene Helen Southgate and Todd Evan Southgate, argued that the named executors, Anne Stewart Cameron and Roger Gerard Downey, had an incurable conflict of interest that prevented them from properly administering the estate and exercising the power of appointment under the Trust Deed for the Tom Southgate Family Trust.

The primary legal issue before the court was whether it was appropriate to bypass the named executors and appoint an independent executor due to the apparent insolvency of the estate and the alleged misconduct of one of the named executors. The court had to consider the statutory discretion under the Administration Act 1969 to grant administration to a person other than the named executor if it was expedient due to insolvency or special circumstances.

The court found that the estate appeared to be insolvent, and there were serious allegations of misconduct by one of the named executors, including unauthorized withdrawals from the Trust’s and the deceased’s personal bank accounts. The court held that these circumstances constituted special circumstances warranting the appointment of an independent executor. The court also noted that the named executors had reached an impasse, with one renouncing immediately and the other agreeing to abide by the court's decision only after initially opposing the application. The court ordered that Bryce John Williams be appointed as the independent executor and that the original will be produced to enable him to apply for letters of administration with the will annexed. The court also ordered that the reasonable professional fees and disbursements of the independent executor be a first charge on the estate.

In terms of costs, the court awarded costs to the applicants but declined to grant an uplift for the pre-litigation conduct of the opposing party, Anne Cameron, as she eventually agreed to abide by the court's decision. The court ordered Cameron to pay costs of $16,338.92 without uplift.

Orders