Wyllie v Firmin - [2022] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-000046

[2022] NZHC 1994

UNDER the Land Transfer Act 2017

IN THE MATTER

of an application for removal of a caveat and for an order for possession of a property

BETWEEN

CORNELIA FRIEDERIKE MARIA

WYLLIE and ABIGAIL JUTTA LATHAM
Plaintiffs

AND

TIMOTHY RICHARD FIRMIN

Defendant

Cont/…

Hearing: On the papers

Counsel:

HL Thompson for Ms Wyllie and Ms Latham as executors of the will of Anthony Lawrence Firmin

S Iorns for Timothy Firmin

Judgment:

12 August 2022

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

[Recall and Costs]

This judgment was delivered by me on 12 August 2022 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
McMahon Butterworth Thompson, Auckland Upper Hutt Law Ltd, Upper Hutt

S Iorns, Barrister, Wellington Copy to: Mr JA Porter

WYLLIE and LATHAM v FIRMIN [2022] NZHC 1994 [12 August 2022]

CIV-2021-463-000069

UNDERSection 21 of the Administration Act 1969

IN THE MATTER of an application to remove and replace
the executors of the estate of Anthony Lawrence Firmin

BETWEEN TIMOTHY RICHARD FIRMIN
Plaintiff

ANDCORNELIA FRIEDERIKE MARIA WYLLIE and ABIGAIL JUTTA
LATHAM as executors of the estate of Anthony Lawrence Firmin
Defendants

Introduction

[1] On 21 March 2022 I issued a judgment determining applications in these two proceedings: 1

(a)dismissing Ms Cornelia Wyllie and Ms Abigail Latham’s application as executors of the will of their father, Mr Anthony Lawrence Firmin, for orders removing a caveat registered by their brother, Mr Timothy Firmin, against a property which is the main asset in their father’s estate (and for vacant possession of that property) (Caveat Application);2
(b)granting Timothy’s application for an order removing Cornelia and Abigail as executors of their father’s will and replacing them with an independent executor (Removal Application).

[2] Cornelia and Abigail have filed an application for recall of my decision on the grounds that:

(a)I refused the application for an order removing Timothy Firmin’s caveat for reasons which were not pleaded nor argued by Timothy Firmin, without first informing the applicants that I was considering determining the application based on those reasons and without affording them an opportunity to make relevant submissions and that this was a breach of natural justice.

(b)Associate Judges have no jurisdiction to hear or determine an application for an order for possession of the property and that the applicants raised that with the Registry before I heard the application.

(c)The decision to remove the applicants as executors was influenced by the views formed in relation to the caveat when I had not given the applicants a proper opportunity to make submissions on the caveat application.

1 Wyllie v Firmin [2022] NZHC 527.
2 As in the original judgment, I refer to the members of the Firmin family by their first names to avoid confusion. I intend no disrespect by doing so.

(d)These circumstances are likely to give rise to injustice when the Court considers the question of costs…

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: [2022] NZHC 1994
Decision Date: 12 August 2022

CaseChat Overview and Summary

Wyllie v Firmin [2022] NZHC 1994 is a case where Cornelia and Abigail Latham, as executors of their father’s will, applied for the removal of a caveat registered by their brother, Timothy Firmin, against a property. They also sought an order for possession of the property. The High Court dismissed their application for the removal of the caveat and granted Timothy’s application to remove Cornelia and Abigail as executors. The Lathams then applied for the recall of the earlier judgment, claiming that the decision was made without adhering to the principles of natural justice, that the Associate Judge lacked jurisdiction over the application for possession, and that the decision would lead to an unjust outcome when it came to the question of costs. Timothy opposed the recall application and sought costs on a 2B basis. The Associate Judge found that there was no breach of natural justice, no issue with jurisdiction, and that the reasons for recalling the judgment were not sufficiently special. In terms of costs, the Judge found that Cornelia and Abigail took unreasonable positions in both applications, and as a result, they should bear a significant proportion of the costs personally, while the estate should bear the remainder. The Judge ordered the recall application to be dismissed and set out the costs to be borne by the Lathams and the estate.

Orders