Hillary v Hillary HC Auckland CIV 2010-404-7445 [2010] NZHC 1985; [2011] NZAR 109 (12 November 2010)

Last Updated: 18 November 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-007445}

BETWEEN PETER EDMUND HILLARY AND SARAH LOUISE HILLARY Plaintiffs

AND LADY JUNE HILLARY Defendant

Hearing: 12 November 2010

Appearances: R O Parmenter for Plaintiffs

P W G Ahern for Defendant

Judgment: 12 November 2010

_{ORAL JUDGMENT OF VENNING J}

Solicitors: Witten-Hannah Howard, Takapuna

Morrison Kent, Auckland

Copy to: R O Parmenter, Auckland

HILLARY V HILLARY HC AK CIV-2010-404-007445 12 November 2010

Introduction

[1] This is an ex parte application for injunctive orders in relation to certain watches currently in the possession of a Swiss auction house. The watches were formally held by Sir Edmund Hillary before his death and have recently been placed with the auction house for sale by his widow Lady Hillary. The application is brought by Sir Edmund’s children.

[2] Although brought as an ex parte application there was correspondence between the solicitors prior to the issue of proceedings and Mr Ahern has appeared as counsel for Lady Hillary this afternoon on a Pickwick basis. Mr Ahern has filed a helpful memorandum for the Court.

Brief background

[3] Sir Edmund died in January 2008. At the time of his death five watches were held at the then family home he shared with Lady Hillary, one, which I will refer to as the Everest watch, and four other Rolex watches.

[4] In or about July or August this year Lady Hillary decided that rather than the watches remaining in the drawers of her home, they could be sold and the proceeds applied to Sir Edmund’s charity, the Hillary Trust, broadly in accordance with the observations by Sir Edmund in his will of his wish for continued support of the Himalayan people he had worked with over many years.

[5] After taking advice, Lady Hillary placed the watches for sale with the Antiquorum Auction House. They are for sale this weekend through that auction house in Geneva.

[6] When the plaintiffs learnt the watches were for sale, they raised with Lady Hillary that the watches were not hers to dispose of. Shortly put, it is the plaintiffs’ position that the watches, with the exception of one referred to as “Peter’s watch” fall into the residue of Sir Edmund’s estate and in accordance with the provisions of

his will, the residue of the estate (after a number of specific legacies) is to be held for the plaintiffs.

[7] In relation to the watch referred to as “Peter’s watch”, Sarah Hillary’s evidence is it was given by Sir Edmund to Peter and was worn by Peter when he had his fall on Ama Dablam. The watch was so badly damaged in the fall that Rolex repaired and returned it in “as new” condition to him. When Peter received the repaired watch, he handed it over to Sir Edmund for the watch to be held with the other Rolex watches held by Sir Edmund. The plaintiffs consider that that watch is Peter’s watch and was never part of the estate.

[8] As noted, in relation to the other watches, the plaintiffs say they form part of the residue of Sir Edmund’s estate. They are particularly concerned about the watch referred to as the “Everest watch” which is a watch that was presented to Sir Edmund following his successful conquest of Mount Everest. He also subsequently wore it on his trek across Antarctica.

[9] Lady Hillary initially considered the watches were hers to dispose of because she considered they had been gifted to her. She also noted that approximately two and a half years had passed without the plaintiffs asserting any right to the watches.

[10] However, despite her initial position, when the plaintiffs raised their concern about the proposed sale with Lady Hillary, through her solicitors Lady Hillary immediately took steps to resolve the matter. All parties responsibly and reasonably agreed on a process to resolve the issue between them. That should have been the end of the matter.

[11] Unfortunately, however, a complicating factor has arisen which has prevented the resolution the parties agreed to being implemented at present. It is that the auction house, through its attorney, has advised that the watches cannot be removed from the sale of the proposed auction at this late stage without the auction house being compensated in full compensation for its cost and loss profits. The auction house calculates its damages at a figure I am told amounts to approximately

NZ$105,000. Both parties before the Court are of the view that sum is clearly excessive.

[12] Against that background the formal application for injunction was filed. This Court has no extraterritorial jurisdiction and of course cannot injunct the Swiss auction house from proceeding with the auction this weekend. It can, however, make orders binding the parties before it in relation to their dealing with the Swiss auction house.

[13] I appreciate that the matter has come before the Court at short notice but I

record I have had the advantage of full and helpful submissions from both counsel.

[14] I also record that it is Lady Hillary’s position, through counsel, that given her agreement to see the matter resolved, orders of the Court were strictly not necessary. However, for the reasons discussed with counsel, I am satisfied that it is appropriate for orders to be made in this case.

Decision

[15] In making orders on an application for interim injunction the Court must consider whether there is a serious question to be tried, the adequacy of damages to either party as an alternative to the grant or refusal of the injunction, the balance of convenience and such other discretionary factors as may be relevant. At the end of the day the Court must stand back and consider where the overall justice of the case lies: Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd.[1]

Serious question

[16] On the evidence before the Court and given the terms of the will providing for the residue of Sir Edmund’s estate to be held for the plaintiffs, I find there is a serious question as to the ownership of the watches in Sir Edmund’s possession as at the date of his death. In relation to those watches, (including the Everest watch),

through the provisions of the will, and also in relation to Peter’s watch, on the evidence before the Court the plaintiffs have a strongly arguable case for ownership of the watches. There is a serious question to be tried.

Balance of convenience

[17] As to the balance of convenience, certainly at least in relation to the Everest watch and Peter’s watch, both have an intrinsic value in themselves to the family of Sir Edmund, which cannot be addressed by money. Damages would not be an adequate remedy. Those factors support the issue of an injunction.

Discretionary factors

[18] In support of his argument that formal orders should not issue Mr Ahern raised the issue of the delay by the plaintiffs in seeking relief, the status quo and the fact that the plaintiffs were seeking a mandatory injunction.

[19] In relation to delay, there is a lack of evidence before the Court as to the steps the parties took prior to the correspondence which is annexed to Sarah Hillary’s affidavit. But on the evidence before the Court, it seems that Lady Hillary decided, that given two and a half years approximately having passed since the death of Sir Edmund, she was free to deal with the watches without advising the plaintiffs of her intention to do so. However, and I do not intend this to be regarded as any criticism of her, given the past issues involving Sir Edmund’s estate and the matters referred to in Sarah Hillary’s affidavit, it is perhaps surprising that Lady Hillary did so without at least raising the issue with the plaintiffs.

[20] The first contact in relation to the matter by the plaintiffs seems to have been in mid October. But by then it seems the die was cast in that the watches were already with the auction house. I note the auction house relies on a provision in its terms of contract with Lady Hillary that provides there is no automatic right to withdraw from the sale once within 45 days of the auction. That period would have

started to run about towards the end of September. Such delay as there has been by the plaintiffs is not a disqualifying factor.

[21] Mr Ahern argues that the status quo is that Lady Hillary has a binding commitment with the auction house. That may be so but it is apparent from the above discussion that now the matter has been brought to Lady Hillary’s attention and, through this judgment, will also be brought to the attention of the auction house, ownership of the watches may not at the time have rested with Lady Hillary. In fact ownership of the watches may in fact properly lie with the plaintiffs.

[22] In light of that it is appropriate that the auction house be made aware that if it was to proceed with an auction in those circumstances it would do so on notice of the claims by the plaintiffs to ownership of the watches. One would expect a responsible auction house, acquainted of those facts, not to proceed with the auction. If, despite knowledge of the plaintiffs’ claim to ownership, it chose to proceed with the auction one would expect it would at least have to advise potential purchasers of the adverse claims to ownership of the watches. For that reason I do not consider the status quo to be an issue that should prevent any issue of injunction.

[23] The last issue is the nature of the orders sought. It is accepted by the plaintiffs that the orders sought, insofar as they extend to requiring Lady Hillary personally, or by her solicitors, to take steps to withdraw the watches from the auction, are mandatory orders.

[24] The issue of the approach to mandatory injunctions was considered by Fisher J in Telecom New Zealand Ltd v Clear Communications Ltd where His Honour observed[2]:

I do not think that those tests [the standard tests] are affected by the question whether the proposed injunction is prohibitory or mandatory. It is just that when the tests are applied, the potential for injustice to a defendant will often be increased by requiring him or her positively to act rather than passively to desist ...

And later:

... an interlocutory injunction is normally brought to preserve the status quo pending a final decision, a mandatory interlocutory injunction is likely to be more intrusive and to disturb the status quo. But each case turns on its own circumstances.

[25] In the present case the mandatory orders sought stop short of requiring Lady Hillary to pay the damages referred to in the e-mail correspondence from the auction house’s attorney. The plaintiffs accept that that would be unreasonable to seek such orders. The Court would not be prepared to make such orders in this case. As noted in Soft-Tech International Pty Ltd v Ball by the former Chief Justice the requirement to pay a sum of money which would normally be described as a debt, would be

completely novel.[3] In this case it would also be unreasonable to require Lady Hillary

to pay a sum of damages to the auction house in circumstances where she was unable to negotiate or test the validity of the claim by the auction house for that sum.

[26] For those reasons I agree that it would be inappropriate to order Lady Hillary to make any payment to the auction house. However, short of that I accept that other orders of a mandatory nature are appropriate in this case. Lady Hillary can take steps which should have the effect of preserving the watches and saving them from sale. Those steps of themselves are not onerous. They may, on the other hand, lead to a resolution of the matter from the plaintiffs’ point of view which could be critical to their claim for preservation of the watches within the Hillary family.

Result

[27] For those reasons I am satisfied that in this case, the injunction orders sought are appropriate and ought to be made. I record that Lady Hillary’s position, as advised to the Court through counsel Mr Ahern, is one of co-operation with the plaintiffs. The necessity for these orders has arisen from the response of the auction house to her request that the watches be withdrawn from the auction.

_{[28] I make orders in terms of the draft order attached.}

Venning J

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[1] Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).

[2] Telecom New Zealand Ltd v Clear Communications Ltd (1997) 6 NZBLC 102,325.

[3] Soft-Tech International Pty Ltd v Ball (1990) 3 PRNZ 683.