Thomas v Thomas - [2016] NZHC 1117

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2014-454-82 [2016] NZHC 1117

BETWEEN
ARTHUR GRAEME THOMAS

Plaintiff

AND

ALISTAIR JOHN SAMUEL THOMAS Defendant

Hearing: 23 May 2016

Counsel:

T C Montague for Plaintiff

Judgment:

26 May 2016

JUDGMENT OF BROWN J

[1] The background to this proceeding is recorded in the judgment of Associate Judge Smith dated 13 November 2014.1 In that judgment an order was made removing Alistair Thomas as an administrator of the estate of the late Arthur Walter Thomas (the deceased) for the reason that he had neglected or refused to perform his duties as executor and trustee.

[2] The plaintiff, who is now the sole executor and trustee of the estate of the deceased, seeks an order under the Property Law Act 2007 for the sale of a farm property at 388 Spur Road, Eketahuna and other orders.

[3] The residue of the deceased’s estate consists of the following assets:

(a) An undivided one half share in all of the land contained in the following Certificates of Title

1 Thomas v Thomas [2014] NZHC 2828.

THOMAS v THOMAS [2016] NZHC 1117 [26 May 2016]

WN25C/849 WN22B/501
WN24C/436 WN192/215
WN24C/434 WN22B/503
WN252/73 WN23B/954
WN23B/780 WN24B/710
WN18D/1083

(b)A one half share in the equity of a farming partnership trading under the name of A W Thomas & Son.

[4] The defendant is the beneficial owner of the other one half share of the assets described in [3] above. Subsequent to the death of the deceased the defendant has continued to farm that land in partnership with the deceased’s estate under the name A W Thomas & Son.

[5] Other than the defendant, none of the residuary beneficiaries has received any benefit from the deceased’s estate. On various occasions the plaintiff has invited the defendant to join with him in the sale of the land and the division of the proceeds of sale but, despite the plaintiff’s endeavours to negotiate a resolution of the respective property interests of the defendant and the plaintiff in the land, the defendant has refused to discuss the issue with the plaintiff or to communicate with the plaintiff in any manner other than expressing a wish for the continuation of the status quo.

[6] Hence the plaintiff has brought this proceeding seeking an order for sale of the land in order that there may be a distribution from the proceeds of sale to the residuary beneficiaries. The defendant has not filed a statement of defence or taken any steps in relation to the proceeding. Consequently the application proceeds by way of formal proof under r 15.9 of the High Court Rules.

[7] The affidavit of the plaintiff filed in accordance with the requirement in r 15.9(4) materially states:

15.On Wednesday 13 April this year, I visited Alistair again in a final attempt to engage with him short of having to proceed with this case through Court, and to avoid the…

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 Thomas v Thomas

Details

AGLC: Thomas v Thomas [2016] NZHC 1117
Case: [2016] NZHC 1117
Decision Date: 26 May 2016

CaseChat Overview and Summary

In this case, Arthur Graeme Thomas, the sole executor and trustee of the estate of the late Arthur Walter Thomas, sought an order for the sale of a farm property at 388 Spur Road, Eketahuna, and other associated orders. The defendant, Alistair John Samuel Thomas, who is the beneficial owner of the other one half share of the assets of the estate, did not file a statement of defence or take any steps in relation to the proceeding. The central legal issue in this case was whether the Court should grant an order for the sale of the farm property in order to facilitate a distribution from the proceeds of sale to the residuary beneficiaries. The court found that the defendant had neglected or refused to perform his duties as executor and trustee, and that it was in the best interests of all parties for the farm to be sold. The court granted the plaintiff's request for an order for the sale of the land, division of the proceeds of sale, and other associated orders. The court also granted an order for indemnity costs to be paid by the defendant, due to his unreasonable refusal to engage in constructive dialogue and the resulting inconvenience and expense to the plaintiff.

The final orders made by the court included an order for the sale of the land and the division of the proceeds of sale in equal shares between the plaintiff and the defendant, a direction for a valuation of the land by a registered valuer, an order fixing the reserve price for the sale of the land, an order directing that the expenses of the valuation and the sale of the land be paid from the proceeds of sale, an order appointing the Registrar of the High Court as the defendant's agent to execute any documentation should the defendant refuse to do so, and an order for the defendant to pay the plaintiff's costs of and incidental to the proceeding on an indemnity basis in the sum of $15,154.70. Leave was reserved to apply to amend or supplement the above orders.

Orders