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…

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.

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Details

Case: [2024] NZHC 3459
Decision Date: 21 November 2024

CaseChat Overview and Summary

Gerard van den Bogaart, the applicant, sought an interim injunction to restrain his siblings, who are administrators of their parents' estates, from disposing of the family home and other estate assets. The siblings sought to sell the property and distribute the proceeds among the beneficiaries, but Gerard contested the sale, claiming an equitable interest in the property based on his contributions to its upkeep and improvements. The central legal issues were whether there was a serious question to be tried regarding Gerard's claim and whether the balance of convenience favoured granting the injunction. The court found that Gerard's claims primarily related to the family trust, not the estate, and that his allegations regarding the trust distributions and trustee actions were not relevant to the injunction application. While Gerard's claim for an equitable interest in the property was poorly pleaded, the court accepted that it could potentially form a basis for such a claim if supported by evidence. However, the court concluded that the balance of convenience did not favour granting the injunction. Key factors included the inadequacy of damages as a remedy for any financial loss, the lack of an undertaking as to damages, and the significant delay by Gerard in pursuing his claim while living rent-free in the property, during which time its condition deteriorated. The court also noted that even if Gerard's claim was successful, it would likely not entitle him to the full beneficial interest in the property, and the estate and its beneficiaries would still be affected. Consequently, the application for an interim injunction was dismissed.

If costs cannot be agreed, the defendants have 14 days to submit their costs, followed by the plaintiff's submissions within another 14 days, after which the court will determine the costs on the papers.

Orders