van den Bogaart v van den Bogaart

[2024] NZHC 3459

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-001975

[2024] NZHC 3459

IN THE MATTER

of an application for an injunction

BETWEEN

GERARD FRANCIS VAN DEN BOGAART

Applicant

AND

FRANCIS ANTHONY VAN DEN BOGAART, GERTRUDE MARIA

EUGENIA MOULDEN and MICHAEL KAREL MARIA VAN EYK as
administrators of the estates of AMH and WH van den Bogaart
First Respondents

CHRIS LYNCH

Second Respondent

Hearing:	3 October 2024
Appearances:	Applicant in person, Rev A Waite as McKenzie Friend C Richardson for Respondents
Judgment:	21 November 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 21 November 2024 at 3.00 pm pursuant to rule 11.5 of the High Court Rules 2016.

………………………………

Registrar/Deputy Registrar

Solicitors:      Inder Lynch, Manukau Copy to: The Plaintiff

VAN DEN BOGAART v VAN DEN BOGAART [2024] NZHC 3459 [21 November 2024]

[1]    The applicant Gerard van den Bogaart (known as Gerry)1 applies to the Court for various orders stated to be for interlocutory relief. The only order of an interlocutory or interim nature among the orders sought is for an interim injunction restraining the defendants from disposing of the assets in Gerry’s parents’ estates. The defendants are administrators of the estates, two of whom (Francis and Gertruda) are also Gerry’s siblings.

[2]    Gerry’s father, Wilhelmus, died on 12 November 2018 at the age of 93. His wife, Anna, died within the year, on 1 October 2019, at the age of 94. Wilhelmus and Anna left behind mirror wills appointing the surviving spouse as executor. In the absence of a survivor, the wills appointed as substitute executors Francis and Gertruda, and family friend Michael van Eyk.

[3]    The effect of the wills and the timing of probate is that the family home/property the couple owned at Ōpaheke2 is now half owned by the defendants as administrators of Anna’s estate and half owned by the defendants as administrators of Wilhelmus’ estate.   The Ōpaheke property has a capital value of $2,320,000 as at    1 June 2021. This is the only substantive asset of their estates, together with $60,000 held in the estates’ solicitors’ trust account and loans required to be paid by certain family members totalling approximately $384,000. For convenience, unless context requires otherwise, I refer to the “Estate” without distinguishing between that of either of the deceased, as did the parties at the hearing.

Background

[4]    Wilhelmus and Anna had eight children. Two of the children are deceased: Andreas died in 1993; and Henry died in 2020 (after his surviving parent had died).

[5]    Wilhelmus settled the Van Den Bogaart Family Trust (Trust) on 25 March 1975 for the benefit of Anna, his children and grandchildren. Based on Gerry’s evidence the Trust was very active, from time to time holding various properties and shares.

1      Because surnames are common, for convenience I refer to the parties by their given names.

2      The transmissions show the executors holding a half share on transmission from Wilhelmus and a half share on transmission from Anna.

The Ōpaheke property was always held in his parents’ personal names, outside the Trust.

[6]    The effect of the mirror wills is that the couple’s residuary estate was intended to be distributed to the Trust and then as directed by an instruction in the wills. That instruction was for the children to benefit from the Trust in equal shares (except in the case of Andreas, who had long-since died, the direction was to split a 1/8th between the mother of his children (1/16th) and his children (1/16th split between them).

[7]    In fact, the Trust had a distribution date of 25 March 2000. This was overlooked until in or around 2018. At that time, a deed of family arrangement  (2018 Deed) was entered into while both parents were still alive3 recording that the trustees had continued to hold the Trust property on bare trust for the beneficiaries living at the date of distribution. The 2018 Deed provided for grandchildren who were not qualifying beneficiaries as they were born after the date of distribution being included in a distribution of the Trust assets. All beneficiaries signed this document, including Gerry.

[8]    Pursuant to the 2018 Deed, distributions from the Trust were to be received from the Trust by all beneficiaries. This was fully implemented except in Gerry’s case. Gerry’s distribution was made but held on his behalf in a bank account in the name of one of his parents. The defendants say that this is because Gerry had failed to provide sufficient proof of his bank account. Irrespective, following his parents’ deaths, these funds, now of approximately $317,000, are presently held in a solicitors’ trust account accruing interest.

[9]    Following the distributions, the Trust was wound up by deed dated 1 August 2018. This was before either parent died, but their wills were not updated and continued to leave their residuary estate to the Trust. The gift to the Trust having failed, the position is that the Estate will go (as if on intestacy) to the seven children who survived Anna and Wilhelmus (with no distribution to Andreas’ children or their mother).

3      However, Anna had partially lost capacity by this point.

[10]   After probate was granted, a deed of family arrangement was prepared by the executors (2021 Draft Deed) which was intended to give effect to the instructions in the wills had the Trust remained. It also addressed the sum being held for Gerry’s benefit from the distribution of the Trust in 2018 that had never been paid to him and was now held in the solicitors’ trust account. The 2021 Draft Deed acknowledged that these funds were held by Wilhelmus for Gerry’s benefit but stipulated that the sum was to be paid to Gerry only on the basis that it was in full and final settlement of any claims against the Trust. It otherwise provided for the Estate to be distributed as per the will’s instruction.

[11]   The 2021 Draft Deed was signed by everyone except Gerry. Gerry says he was not given a full copy of the 2018 Deed and says any failure to give the bank account number to receive his distribution was not his. When refusing to sign the 2021 Draft Deed he did then provide a bank account and requested the funds to be paid. Payment was refused by the defendants in the absence of Gerry signing the deed and because the solicitors wanted confirmation of the bank account through a bank statement or deposit slip.

[12]   At some point (it is not clear when exactly), Gerry raised complaints about transactions by the Trust, how the Trust had been administered, about steps taken when his parents were deteriorating mentally, about trustee non-disclosure/transparency, and about the 2018 Deed. Some of these complaints go back many years, others are more current. For example, Gerry asserts that the Trust has not in fact been wound up despite the various formal documents to the contrary.

[13]   Gerry lived on the Ōpaheke property for many years prior to his parents’ death and continued to occupy it thereafter, rent free. There have been protracted proceedings seeking to remove Gerry from the property so that it could be sold and the proceeds distributed. Gerry sought to adjourn the possession proceeding but it proceeded on 2 July 2024. He ultimately vacated the property on 6 September 2024, following the issue of an eviction warrant.   The current proceeding was filed on      5 August 2024, accompanied by an application for interlocutory orders.

[14]   The defendants want to sell the property and distribute the proceeds. They say Gerry has left the Ōpaheke property in a derelict state and in need of a great deal of work to be ready for sale and in order to achieve the best price.   The photographs     I have seen confirm the defendants’ allegations as to the state of the property.

The claim and relief sought

[15]   Gerry’s statement of claim is not conventional given that he is self-represented. It is somewhat difficult to extract the specific legal claims. However, I summarise the claims made as succinctly as I can.

[16]Gerry makes a range of allegations about the 2018 Deed:

(a)He alleges that he signed it not having seen a full version.

(b)He alleges failures back to 2018 to distribute the funds to him in accordance with that deed.

(c)He complains that the defendants continue to refuse to pay his distribution from the Trust unless he signs the 2021 Draft Deed, which he says is extortionate and in breach of the Trusts Act 2019.

(d)Gerry makes a more general allegation regarding the Trust that family members except for him benefited from it, yet he says it was funded by his labour.

[17]   Gerry contends a failure by the defendants to provide information and to meet requests for full audits. Information requested relates to full disclosure of dealings with the Estate and Trust property going back to two years prior to when his brother Henry acquired a farm from the Trust back in 2013.

[18]   As regards the Ōpaheke property, Gerry alleges that an order granting the defendants possession in the Tenancy Tribunal, while correct in law, fails to recognise that there is an “estate dispute”. Specifically, he says had he been paid in 2018, he would have put those funds into a property.

[19]Generally, as relevant to the Estate, Gerry pleads:

The Plaintiff has equity in the estates of both his father and mother, including buildings, shares, funds, missing wages, and holiday pay from working unpaid for his parents since October 1987. He has completed repairs, maintenance, and improvements at his own expense. He has various tractor parts, equipment, and chicken sheds located on the property.

[20]   He also complains that the wishes of his parents as expressed in their wills are not being expedited.

[21]   The substantive relief sought in his claim includes an order removing and replacing the “executors/trustees due to breach of trust under the Trusts Act 2019”; a “full forensic audit” of the Trust from two years prior to Henry purchasing a Trust property; an injunction preventing further disposition of Estate assets pending the outcome of the audit; and a declaration that he has the right to occupy the Ōpaheke property.

[22]   Gerry’s perspective is that he has been pursuing full disclosure of the Trust’s dealings for years. He thinks secret deals have been done and that no one has been prepared to explain what is going on to him. Gerry wants distributions paused until there is that disclosure. He says that is also in the interests of family members who he sees himself as benefitting by bringing the proceedings. In his accompanying affidavit he raises various Trust and share transactions going back many years that he considers are unexplained.

Approach to injunction

[23]   The Court takes the following approach to an application for an interim injunction:4

(a)whether there is a serious question to be tried;

(b)whether the balance of convenience favours release; and

(c)where the overall justice of the case lies.

4      Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).

[24]   The balance of convenience is often taken to mean “the balance of the risk of doing an injustice”.5 This is a broad and flexible enquiry. Relevant factors include the adequacy of damages to both parties, the status quo, the relative strengths of each party’s case, any effect on innocent third parties and the conduct of the litigants.6 An undertaking as to damages is nearly invariably required.7

Whether there is a serious question to be tried

[25]   As I noted at the outset, the only aspect of Gerry’s application for interlocutory relief which is not of a substantive nature, is the application preventing any further disposition of Estate assets pending the outcome of an audit he wishes to be undertaken. There must be a serious question to be tried related to that relief.

[26]   As the defendants submitted, virtually none of the issues Gerry raised are relevant to the distribution of the Estate assets. The Trust was wound up in 2018. To the extent that Gerry alleges that the executors have wrongly failed to pay him the funds held on his behalf from the 2018 distribution unless he signs the 2021 Draft Deed, this does not have appropriate connection to relief by way of preventing disposition of assets of the Estate. That is because these funds are being held separately in a solicitors’ trust account for his benefit and are not, and are not being treated by the defendants as, part of the Estate.

[27]   This application is not the forum for Gerry to impugn trust distributions back to 2018 under the 2018 Deed and before. Nor is this the forum for Gerry to assert, as he does in his 20 August 2024 affidavit, that he has reason to believe that undue influence may have been applied to coerce his parents to distribute assets of the Trust prior to their death for less than market value. Again, this relates to the Trust. There is no claim made by his pleading for undue influence in dealing with his parents’ assets forming part of their own estates. Substantive relief in the form of an audit would not justify interim orders that the property of the Estate is not to be disposed of pending trial, particularly when the primary focus of the audit is on Trust matters.

5      Cayne v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237.

6      McLaughlin v McLaughlin [2019] NZHC 2597, [2019] NZFLR 299 at [38].

7      Maniapoto v Maniapoto Māori Trust Board [2022] NZHC 455 at [54]; and Legler v Formannoij

[2021] NZHC 2759 at [17].

[28]   Accordingly, I accept the defendants’ submission that to the extent that Gerry raises matters associated with distribution of assets from the Trust and trustee actions, the application is misconceived. I acknowledge Gerry’s perspective that he may regard the Trust and Estate as family assets and it is difficult for him to distinguish them. However, in law they need to be viewed separately.

[29]   The only allegation in Gerry’s claim that may have a requisite connection to the interim relief sought is Gerry’s allegation that I set out earlier from his claim:

The Plaintiff has equity in the estates of both his father and mother, including buildings, shares, funds, missing wages, and holiday pay from working unpaid for his parents since October 1987. He has completed repairs, maintenance, and improvements at his own expense. He has various tractor parts, equipment, and chicken sheds located on the property.

[30]   I turn to address whether an interim injunction restraining disposition of the Estate’s assets is made out on the basis of this allegation.

[31]   The defendants submitted that the wording of Gerry’s claim does not relate to the real property assets (that is, the family home) but only to buildings, fences and the like, plus the reference to equity in “the estate” as opposed to equity in the assets owned by the Estate. I do not consider that is a fair distinction. It is tolerably clear from the statement of claim, certainly when read with Gerry’s affidavit, that what is partly being asserted here is an interest in the farm where he has been living and from where he recently vacated.

[32]   The question therefore is whether Gerry has a seriously arguable case for an interest in the Estate property, that is the Ōpaheke property, based on the work he said he did. The claim is very poorly pleaded but I accept that the facts pleaded could potentially, if supported sufficiently by his affidavit, give rise to a claim for an equitable interest in the property.

[33]I turn to the evidence filed in support.

[34]   Gerry says that he has always lived at home with his parents and that at that time he knew what was going on in his family’s financial affairs. He describes that “We were buying and selling farms and other properties and I instigated the purchase

of several of these.” A claim against the Estate could only be to its assets and it is not evident from his pleading that anything but the Ōpaheke property was owned by the Estate (as opposed to the Trust).

[35]   By his affidavit dated 20 August 2024, Gerry says transactions have not been accounted for and nor  have  benefits  to  other  family  members  been  disclosed.  He deposes:

I have been living in the family home since 1960 and have personal equity in the trust properties, and my parents’ estates, which has not been recognised by the executors.

[36]He goes on to say:

My father’s estate remains unsettled, with his personal promise to me ignored. He told me in November 1972, “You come home, work on the farm, and you get a farm.”

[37]He complains that:

No account has been made for the sweat equity and financial contributions, or lack thereof, made by family members to these properties. There seems to be a presupposition that equal distribution is fair and equitable, which I dispute.

[38]   He describes his whole life having been centred on “this property and our family farms”. He says “I currently have no financial means to remove myself from the property and nowhere else to go.” This was prior to when he left the Ōpaheke property.

[39]   As is evident, Gerry’s claim continues to blur the personal Estate assets with the Trust assets. Moreover, the affidavit itself is very sparse. There are simply limited assertions that are not supported. On the evidence before me at present, there is a very limited foundation for any arguable claim for an injunction preventing disposing of assets.

[40]   At best, I could describe it as barely tenable. Accepting a tenable claim for the interim relief sought, I now assess the balance of convenience.

Balance of convenience

[41]I turn to the balance of convenience factors.

Undertaking as to damages

[42]   Gerry has filed an undertaking as to damages dated 8 July 2024. This provides that he will pay the reasonable costs of “anyone other than the Defendant(s)” if so ordered by  the Court.   This is an undertaking without substance and is contrary to   r 7.54 of the High Court Rules 2016 which specifically requires an undertaking for the benefit of the person(s) against whom the injunction is sought. Gerry conveyed through his McKenzie Friend who was assisting him that the undertaking is worded that way because he sees what he is doing as for the family.

[43]   However, Gerry has been on notice since 20 August 2024 that the defendants consider the undertaking non-compliant. No compliant undertaking was offered up at the hearing. It is wholly deficient. There is no undertaking as to damages.

Adequacy of damages

[44]   An interim injunction will not normally be granted where damages are an adequate remedy. Issues Gerry appears to raise regarding money sums involving the Estate would be compensable in damages. The issue Gerry raises as to having “equity” in the family property can be compensated in damages in the sense that if the property is sold and the Estate distributed, an ultimate determination that Gerry had an interest in the property and suffered a loss could be addressed by a money sum.

[45]   Although that may address the strict financial position, I acknowledge that Gerry has a personal attachment to this property and it has been his long-standing family home, so in that sense damages would not be adequate. Notably, Gerry contended he would buy the property from the Estate if given the opportunity to do so. In principle there is no reason why that should not occur if he has the funds to do so.

Other interests

[46]   The tenor of Gerry’s limited evidence is at best that he maintains some interest in the Estate. Unless altered by a deed of family arrangement, he already has a seventh interest (an eighth, if the 2021 Draft Deed were implemented with his consent). The evidence is very weak in identifying what greater level of interest Gerry says he claims or what would support a greater interest. I do not consider there is evidence before me of a tenable claim to full beneficial ownership.

[47]   As noted earlier, Gerry deposes that his father told him in 1972 “You come home, work on the farm, and you get a farm.” However, the context is his overall complaint about management of the Trust and lack of information concerning a number of Trust properties plus the Ōpaheke property, rather than an assertion he is entitled to the full equity in what is the family home. It is also very slim on supporting evidence. In my view, a claim for full beneficial interest is untenable.

[48]   Accordingly, if the defendants are restrained from selling the property there will be a lengthy further period before the Estate can be distributed, in circumstances where, even assuming Gerry’s claim were successful, he would not be the sole owner of the Ōpaheke property. Hence, the Estate’s and its beneficiaries’ interests will be affected even if Gerry was successful in establishing some interest.

Defendants’ responsibilities in the administration of the Estate

[49]   Relatedly, the defendants fairly say that any injunction will mean they are unable to perform their duties as administrators to get in the assets of the Estate and distribute the residue to the persons entitled.8 The defendants say that this could result in them being potentially liable at the behest of the beneficiaries. The defendants acknowledge that an injunction of the type sought by the plaintiff is available if the circumstances demand it. However, they say no compelling reason has been given for why the remedy should be granted.

8      I query whether they would be liable for failing to get in the assets and distribute if restrained from doing so by the Court, although I agree that prima facie the failure would be a breach.

Delay

[50]   Wilhelmus and Anna have now been gone for more than half a decade. Gerry only took legal steps to pursue his statement of claim after the defendants were finally awarded possession of the Estate property that he had been occupying without consent and rent free. The defendants have been unable to distribute the Estate because Gerry has been living in the property. I accept that delay by Gerry in bringing the issue before the Court while continuing to live in the property rent free tells against the relief sought.

Condition of the property

[51]   The defendants also point to the dire state of the Ōpaheke property when Gerry vacated. I was provided with photographs which show a parlous and run down property which would require significant work to be brought into a sanitary state and further work for sale. The defendants say this conduct is disentitling as regards interim relief. They also say it weighs against Gerry’s expressed rationale for bringing the claim which is that he is doing so for the benefit of his family members. Although not determinative, these factors go into the mix on the balance of convenience.

Overall justice and conclusion

[52]   Standing back, I decline the interim orders restraining sale of the property or distribution of the Estate. The primary claims Gerry wants to pursue, including as to taking an audit, substantively relate to the Trust not the Estate. The relevant claim to equity in the Ōpaheke property is weak with little evidential support. Damages would likely be an adequate remedy for any financial loss.

[53]   As to the non-financial aspect, Gerry said he wishes to buy the property and says he can do so. There would appear to be no barrier why, based on a market valuation, the trustees would not be prepared to have him acquire it if he had funds, subject of course to recognising any deterioration of the property’s market value due to Gerry’s own actions.

[54]   There is no undertaking as to damages. In my view, even if successful Gerry’s claim will not be for the full beneficial interest in the property, so the Estate (and in turn its beneficiaries) will be affected by the relief even if Gerry is successful in establishing some interest. There has now been significant delay during which period Gerry lived rent free in the property while its condition deteriorated.

[55]   There is a kernel of a claim for some form of equitable relief based on the property, but I do not think it is sufficient to restrain the defendants from getting on and distributing the Estate. Ultimately, given a lack of an undertaking as to damages and the very limited evidence from Gerry, I do not think it is in the interests of justice to restrain the defendants from dealing with the Ōpaheke property or the Estate.

Result

[56]The application is dismissed.

[57]   If costs cannot be agreed, I will receive submissions on costs by the defendants within 14 days, and by the plaintiff in a further 14 days. I will then determine costs on the papers.

Anderson J