Wyllie v Firmin - [2022] NZHC 527

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 527

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: 18 November 2021

Appearances:

H Thompson for Ms Wyllie and Ms Latham as executors of the Will of Anthony Lawrence Firmin

S Iorns for Timothy Firmin

Judgment:

21 March 2022

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 21 March 2022 at 4.30pm 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 & LATHAM v FIRMIN [2022] NZHC 527 [21 March 2022]

CIV-2021-463-000069

UNDER Section 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

AND

ABIGAIL JUTTA LATHAM and CORNELIA FRIEDERIKE MARIA

WYLLIE as executors of the estate of Anthony Lawrence Firmin Defendants

Introduction

[1] The executors of the will of Mr Anthony Lawrence Firmin (“Tony”)1, two of his six children, have filed an application to remove a caveat lodged by their brother, Mr Timothy Richard Firmin (“Timothy”), over a property that their father, Tony, and mother, Jutta Firmin, occupied and managed during their lifetime as an orchard (“Caveat Application”).

[2] Timothy opposes that application, claiming that the caveat ought to be sustained because he has a right of first refusal to acquire the property at market valuation (determined by registered valuation). Timothy has brought separate proceedings asserting that this right of first refusal to acquire the property was a testamentary promise made to him by Tony or, alternatively, was a term of the will.

[3] Ordinarily a testamentary promises claim will not support a caveat. But in this case Timothy’s interest in the land is recorded on the caveat in terms of the right of first refusal and does not rely on it being a testamentary promise.

[4] In addition to opposing the Caveat Application, Timothy has brought an application seeking the removal of the executors by way of summary judgment. The executors are Timothy’s sisters, Ms Cornelia Wyllie and Ms Abigail Latham. Timothy relies on s 21 of the Administration Act 1969 and submits that it would be expedient for the executors to be removed including as a result of their bringing the application to lapse the caveat and for vacant possession when it is clear that there is a serious question to be tried.

[5] Timothy submits that the executors have disregarded legal advice which strongly urged Cornelia to renounce her role as executor from the outset and urged them to obtain a further valuation if they were unhappy with the first valuation obtained.

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 527
Decision Date: 21 March 2022

CaseChat Overview and Summary

In Wyllie v Firmin, the executors of the estate of Anthony Firmin, Cornelia Wyllie and Abigail Latham, applied to remove a caveat lodged by Timothy Firmin over a property owned by the estate and to remove themselves as executors. Timothy opposed the applications and brought separate proceedings asserting a right of first refusal to acquire the property at market valuation. The High Court found that it was reasonably arguable that Timothy had a right of first refusal to purchase the property at market value. The Court held that the right of first refusal was a disposition of an interest in land and that it was reasonably arguable that Timothy could rely on the doctrine of part performance. The Court also found that it was expedient to remove the executors and replace them with an independent executor, John Porter. The Court dismissed the application for orders for vacant possession. The Court made orders that the caveat would remain in place until Timothy brought a claim in contract for a right of first refusal at market value and that any objection to Mr Porter's appointment as executor would be determined by further order of the Court. Timothy was entitled to costs.

Orders