Thakurdas v Wadsworth - [2018] NZHC 1106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001950 [2018] NZHC 1106

BETWEEN
PETER ARUN THAKURDAS

Appellant

AND

GARY DESMOND WADSWORTH AND SHARON ANNE ELIZABETH WADSWORTH

Respondents

Hearing: 8 December 2017

Appearances:

S Jefferson QC and L Kearns for the Appellant G Illingworth QC for the Respondents

Judgment:

18 May 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 18 May 2018 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

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

Counsel:
Simon Jefferson QC, Auckland Lynda Kearns, Barrister, Auckland Grant Illingworth QC, Auckland

THAKURDAS v WADSWORTH & ANOR [2018] NZHC 1106 [18 May 2018]

[1] Mrs Thakurdas’ marriage was dissolved in October 2014. In January 2015, she died. Can the executors of her estate bring proceedings under s 182 of the Family Proceedings Act 1980 after her death?

[2] On 28 July 2017, Judge Burns found that the executors could bring such a proceeding.1 Mr Thakurdas appeals.

[3] The point is interesting and apparently without precedent, at least in this jurisdiction.

Background

[4] After at least three years of separation, the marriage between Mr and Mrs Thakurdas was dissolved on 15 October 2014.

[5] There is one child of the marriage, Faraaz Thakurdas, aged 22 years as at December 2017. He is a student.

[6] After the separation, Mrs Thakurdas was living in Pakistan with Faraaz, but returned to New Zealand in approximately March 2014 to have medical treatment for cancer. She stayed in the parties’ home at 84 Gillies Avenue, Epsom where Mr Thakurdas had remained following the separation.

[7] Mr and Mrs Thakurdas attended mediations regarding property division in August and November 2014. The executors allege that at the second mediation, agreement was reached as to the sale of the Gillies Avenue property and equal division of the net proceeds. Mr Thakurdas denies that a final agreement was reached.

[8] The Gillies Avenue property was owned by the Peter and Saba Thakurdas Family Trust.2 The trustees of the trust were Mr and Mrs Thakurdas and a mutual

1 Wadsworth v T [2017] NZFC 5833, (2017) NZTR 27-014.
2 Although I note the house was subject to a 99-year lease to Mr and Mrs Thakurdas, on favourable terms. The lease would presumably would have been relationship property at the date of separation.

friend, Mr Trevor Attwood. The primary discretionary beneficiaries are Mr and Mrs Thakurdas and Faraaz. Faraaz is the only final beneficiary.

[9]On 17 December 2014, the trust sold the Gillies Avenue property at auction for

$1.125 million, netting approximately $780,000.

[10] On 23 January 2015, Mrs Thakurdas died. The sole beneficiary under her will is Faraaz. The executors are Mr Wadsworth, a solicitor, and his wife, Sharon Wadsworth.

[11] In February 2015, the executors asked Mr Thakurdas to confirm equal division of the net sale proceeds of Gillies Avenue. In reply, the trust’s solicitors asserted a right to the full proceeds, agreeing to hold the funds in…

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 Thakurdas v Wadsworth

Details

AGLC: Thakurdas v Wadsworth [2018] NZHC 1106
Case: [2018] NZHC 1106
Decision Date: 18 May 2018

CaseChat Overview and Summary

In the case of Thakurdas v Wadsworth, the High Court of New Zealand addressed the issue of whether the executors of a deceased spouse's estate could bring proceedings under s 182 of the Family Proceedings Act 1980 after the death of the spouse. The Court found that the executors could indeed bring such a proceeding, dismissing the appeal brought by Mr. Thakurdas. The Court's reasoning was based on the purpose of s 182, which is to prevent unfairness between parties to a marriage following its dissolution, and to remedy the consequences of the failure of the premise on which the settlement was made. The Court also considered the language of s 182, which does not explicitly state who may bring an application, and the interests of children as a primary consideration under the section. The Court concluded that the executors have standing to bring an application under s 182, and that the appeal was dismissed. The respondents were entitled to costs for a standard appeal on a band B basis.

Orders