Warin v Warin

[2025] NZHC 67

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-293

[2025] NZHC 67

BETWEEN

NIGEL TREVOR WARIN as Executor of the Estate of MARIAN RUTH WARIN Applicant

AND

COLLEEN ANNE WARIN

Respondent

JAMES EDMOND MCLENNAN

Interested Party

Hearing:	On the Papers
Counsel:	D M Fraundorfer for Applicant
Judgment:	5 February 2025

JUDGMENT OF McQUEEN J

[1]This matter has come before me as Duty Judge.

[2]        Nigel Warin wishes to enforce a long-standing judgment debt against his sister Colleen Warin. The debt is owed to the estate of his mother Marian.1 To this end, Nigel has filed applications for a new parties order, leave to issue enforcement processes and charging orders. All the applications are made on a without notice basis.

Background

[3]        The Warin family has been engaged in protracted, but intermittent, legal proceedings over money owed by Colleen to her parents. In April 2017, Associate

1      I will use the parties’ first names for accuracy—no disrespect is intended.

WARIN v WARIN [2025] NZHC 67 [5 February 2025]

Judge Smith granted summary judgment in favour of Marian (Summary Judgment).2 The judgment sum was $177,470.63, with interests and costs.3 The total debt claimed is $206,081.83 (Judgment Debt).

[4]        A charging order (to the amount of the Judgment Debt) was made over a Waiheke Island property in 2017. A sale order was subsequently issued and defended in 2018.4 Marian discontinued the sale order application in September 2019 due to Colleen’s live bankruptcy proceedings, and other intervening mechanisms including notices under the Property Law Act 2007.5 In determining an application for costs in November 2019, Justice Churchman observed Marian “acted reasonably” in bringing, and discontinuing, the sale order, and granted costs in her favour.6

[5]        It is not clear why no enforcement action was undertaken between 2020 and 2023, but the memorandum of counsel accompanying the applications suggests that Marian’s declining health, subsequent death and delays in granting probate were contributing factors.

[6]        Marian died in February 2023. Probate was granted on 1 March 2024, with Nigel appointed as the sole executor. Marian’s will, dated 25 July 2018 (the Will), includes a specific directive that her executor is to recover the Judgment Debt. The Will also records that there is no provision for Colleen under the Will because, at the time the Will was made, Colleen had not repaid loans owing to Marian and her husband.

[7]        The Judgment Debt remains unsatisfied. Colleen has an interest in two properties, to which charging orders might be attached. The interested party is also named as a registered proprietor of those properties. It appears that he and Colleen are trustees for a trust settled by and for the benefit of Colleen. The memorandum of counsel for Nigel states that Colleen is taking steps to sell one of the properties and attaches a real estate agent listing of that property.

2      Warin v Warin [2017] NZHC 786 [Summary Judgment].

3 At [130].

4      Warin v Warin [2019] NZHC 2875 at [1] [Churchman J].

5 At [3].

6      At [6] and [7].

[8]        Against this background, Nigel applies for the three orders, which I will consider in turn.

Application for new parties order

[9]        I consider it is appropriate to grant the new parties order, on a without notice basis.7 I consider it is both necessary and desirable that Nigel be made a party to the proceeding in his capacity as the executor of Marian’s estate.8 Rule 4.52(2) of the High Court Rules 2016 expressly permits the application occur without notice. While, as Harvey J recently put it, this is “uncommon”,9 orders of this nature can be made at any time, even after final judgment has been entered.10

[10]      I will grant the order in the form sought, and substitute Nigel Trevor Warin as the plaintiff in the proceeding CIV-2016-485-293 under r 4.52 of the High Court Rules.

Application for leave to issue enforcement process

[11]      Nigel applies under r 17.9 of the High Court Rules for leave to issue an enforcement process in respect of the Judgment Debt. Leave is required to issue an enforcement process for two reasons:

(a)more  than  six  years  have  elapsed  since  the  Summary  Judgment (r 17.9(2)(b)); and

(b)a change has taken place, by death, in the parties entitled to enforcement under the Summary Judgment (r 17.9(2)(c)).

[12]      The issue here relates to the first reason leave is required—the passage of more than six years since the Summary Judgment.

7      I agree with counsel for Nigel, Mr Fraundorfer, that this application fits within r 7.23(2)(i), (ii),(iii) and (iv) of the High Court Rules 2016.

8      High Court Rules, r 4.52(1).

9      Turner v Ford Pastoral Company Holdings (NZ) Ltd [2024] NZHC 886 at [3].

10     See Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR4.52.02], and Cathie v Simes (2004) 17 PRNZ 155 (CA).

[13]      The granting of leave in this context is “doubtless a matter of discretion” to be exercised on the merits of the case.11 McGechan on Procedure suggests leave should not be given to issue execution on a judgment more than six years old without notice to the other party, except in special circumstances.12

[14]      This requirement for “special circumstances” to be made out is reinforced by the grounds on which an application may be made on a without notice basis, under    r 7.23 of the High Court Rules.

[15]      As in Wati v Sharma, the Court would have benefited from a comprehensive affidavit addressing the reasons for the prolonged delay in enforcement.13 There are vague references to Marian’s health and the delays of the probate process, and some insight can be gleaned from Churchman J’s 2019 decision, as I have mentioned earlier.14 Nigel does not address in his affidavit the reasons for the delay in pursuing enforcement processes. Nigel draws attention to the Will’s directive that he should recover the Judgment Debt but does not mention that Colleen was not provided for in the Will. The present applications appear to be motivated by knowledge that one of the properties in which Colleen has an interest has been placed on the market.

[16]      In the circumstances, I am not satisfied that this application may proceed on a without notice basis in accordance with r 7.23 of the High Court Rules. Particularly, I am not satisfied that requiring Nigel to proceed on notice will cause undue delay or prejudice to him, that the application affects only him or that the application relates to a routine matter (being the grounds relied on by Nigel in his application).

[17]      While some of the delays are likely able to be explained, the lack of action from 2020 onwards has not been adequately explained. Despite there being a judgment that is, on its face, able to be enforced, I am not satisfied that the circumstances in this

11 Farr (as assignee of Inspect IT 1st Ltd (in liq) v Miller [2017] NZHC 3150 at [10] citing R Chesney Ltd v New Zealand Dry Cleaners [1958] NZLR 598 at 601 (HC).

12 McGechan on Procedure, above n 10, at [HR17.9.04] citing R Chesney, above n 11.

13 See Wati v Sharma [2020] NZHC 2010 at [12]: Downs J commented the applicant’s affidavit was “terse” and it would have been of assistance to have further explanation as to the reasons for the delay. I note that the application in this case was made on notice.

14 Churchman J, above n 4.

case amount to “special circumstances” that would justify proceeding on a without notice basis.

[18]      This is not to say that it may well be appropriate that leave to issue enforcement processes be granted for Nigel on the merits of this case. It is certainly desirable that this family dispute, which has limped along for years, be finally resolved. However, that is a matter for another day, as I will make a direction that this application be determined on notice.

Application for a charging order

[19]      Nigel applies for final or interim charging orders in respect of the two properties. The amount sought to be charged is the Judgment Debt.

[20]      Given my decision in relation to the application for leave to issue an enforcement process on a without notice basis, the application for charging orders must also be considered on notice.

Orders

[21]      I order that Nigel Trevor Warin is substituted as the plaintiff in the proceeding CIV-2016-485-293 under r 4.52 of the High Court Rules.

[22]      I order that the applications for leave to issue an enforcement process and for final or interim charging orders are to be served on the respondent and interested party.

[23]      I direct that this matter be placed for call in the Judge’s Chambers List at a convenient date no less than ten working days after service of the applications is effected.

McQueen J

Solicitors:

Lyon O’Neale Arnold Law, Tauranga for Applicant