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…

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 Warin v Warin

Details

AGLC: Warin v Warin [2025] NZHC 67
Case: [2025] NZHC 67
Decision Date: 5 February 2025

CaseChat Overview and Summary

Nigel Warin, as the executor of the estate of Marian Ruth Warin, has applied to enforce a long-standing judgment debt against his sister Colleen Anne Warin. The debt stems from a 2017 summary judgment in favour of Marian, which awarded a debt of $177,470.63, plus interest and costs, totaling $206,081.83. Nigel seeks a new parties order to replace Marian as the plaintiff, leave to issue enforcement processes, and charging orders against Colleen's properties. Colleen, who is not provided for under Marian's will, is the respondent, and James Edmond McLennan, a registered proprietor of Colleen's properties, is an interested party.

The court was required to decide whether to allow Nigel to substitute as the plaintiff in the existing proceeding without notice, whether leave to issue enforcement processes should be granted without notice due to the passage of more than six years since the summary judgment, and whether charging orders should be issued against Colleen's properties. The court also had to determine whether the applications should proceed on a without notice basis, given the passage of time and the lack of explanation for the delay in enforcement.

The court determined that it was both necessary and desirable for Nigel to be substituted as the plaintiff in the proceeding, and thus granted the new parties order. However, the court declined to grant leave to issue enforcement processes and charging orders without notice. The court found that while some delays could be attributed to Marian's declining health and the probate process, the lack of action from 2020 onwards had not been adequately explained. The court emphasised that leave to proceed without notice requires special circumstances, which had not been demonstrated in this case. The court therefore directed that the applications for leave to issue enforcement processes and charging orders be served on the respondent and interested party, and ordered that the matter be called in the Judge's Chambers List no less than ten working days after service of the applications.

The court ordered that Nigel Trevor Warin be substituted as the plaintiff in the proceeding CIV-2016-485-293 under rule 4.52 of the High Court Rules. The court also ordered that the applications for leave to issue enforcement processes and for final or interim charging orders be served on the respondent and interested party. The court directed that the 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.

Orders