Farquhar v Nunns [2013] NZHC 1670 (3 July 2013)

Last Updated: 3 September 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-5188 [2013] NZHC 1670

UNDER the Family Protection Act 1955 and the

Law Reform (Testamentary Promises) Act

1949

BETWEEN HELEN MARGARET FARQUHAR Plaintiff

AND VIKKI JANE NUNNS and HOLLY REBECCA CLARKE as trustees and executors of the estate of ROGER GORDON CLARKE (Deceased) First Defendants

SHIRLEY FLORENCE JEFFERY Second Defendant

Hearing: 21 June 2013

Counsel: R D C Hindle for Plaintiff

B P C Carter for First Defendants (in personal capacity)

K A Muir for First Defendants (as executors and trustees) Appearance on behalf of Second Defendant excused

Judgment: 3 July 2013

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 3 July 2013 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

_{Registrar/Deputy Registrar}

FARQUHAR v NUNNS [2013] NZHC 1670 [3 July 2013]

The application

[1] Ms Farquhar applies to remove Ms Nunns and Ms Clarke as executors and trustees (the administrators)1 of the estate of her late husband, Roger Gordon Clarke. She contends that there is a clear conflict between their roles as executors and trustees (on the one hand) and their personal financial interest as beneficiaries of the estate (on the other). Public Trust is put forward as an independent substitute.

Background

[2] Mr Clarke died at Auckland on 10 December 2011. He had married Ms Farquhar in February 2004. They remained married at the time of his death. Although they had been married for almost nine years, Ms Farquhar received nothing of substance from his estate; at least, in the context of an estate having a net

value of something in the vicinity of $1,700,000.2

[3] In his last Will made on 26 April 2010, Mr Clarke appointed his two daughters from an earlier marriage, Ms Nunns and Ms Clarke, as executors and trustees of his estate. Probate was granted in their favour, on 21 December 2011.

[4] Under the Will, Ms Farquhar was released from liability in respect of loans, said to have been made to her by her husband. In proceedings issued in the District Court of Queensland, Ms Farquhar retorts that the sum in issue was $100,000 and it was a gift. Mr Clarke also assigned her a debt owed to him by Instant Interiors Gold Coast Pty Ltd, but no specific mention of that debt is made in the statement of assets and liabilities of the estate filed in this proceeding. Ms Farquhar was also given a right to occupy the former family home in Queensland for one year, on condition that she pay all outgoings.

[5] The residue of the late Mr Clarke’s estate was left to his daughters, Ms Nunns and Ms Clarke. That being so, for all practical purposes they are the only

_{beneficiaries of the estate.}

1 For convenience, I use the term “administrators” even though there is a clear difference between

_{the roles of executor and trustee.}

2 Although the statement of assets and liabilities of the estate, set out in Ms Clarke’s affidavit of

21 December 2012, is not in a form that enables the net value to be calculated readily, that is my calculation of the approximate value, using her figures.

[6] Mr Clarke was a property developer. His financial affairs required a good deal of untangling after his death. An issue that impacts directly on Ms Farquahar arises out of a subdivision of 45A Nihill Crescent, St Heliers. That appears to have been undertaken in conjunction with a company associated with Mr Gribble (now bankrupt) and his partner, Ms Jeffery.

[7] Ms Farquhar claims a beneficial interest in some of the subdivided land. She does so on the basis of an equitable claim that she says arises independently of any interest that she may be able to establish in the estate, or under the Property (Relationships) Act 1976 (the 1976 Act). Ms Jeffery, also claims an interest in some

parts of the subdivided land.3 She supports Ms Farquhar on this aspect of her claim.4

[8] In this proceeding, Ms Farquhar seeks relief:

(a) under the Family Protection Act 1955 (the 1955 Act),

(b) under the Law Reform (Testamentary Promises) Act 1949 (the 1949

Act), and

(c) pursuant to an alleged constructive or resulting trust, in respect of the interest claimed in some of the Nihill Crescent subdivision.

The proceeding has been set down for hearing in this Court over five days, commencing on 25 November 2013.

[9] In addition, Ms Farquhar has brought:

(a) proceedings in the District Court of Queensland, in which she seeks relief, in respect of the Queensland property in which she and her late husband formerly resided, under that State’s equivalent of the 1955

_Act.5

3 _{Ms Jeffery has been joined as a defendant to this proceeding.}

4 _{See para [8](c) below.}

5 Succession Act 1981 (Qld).

(b) a claim under the 1976 Act.6

Ms Farquhar contends that it has been necessary to issue these separate proceedings in order to meet adversarial positions taken by the administrators in respect of the claims made in this proceeding. There is a credible narrative to support that view.

[10] Over time, Ms Farquhar has grown increasingly distrustful of the way in which Ms Nunns and Ms Clarke are exercising powers as administrators of her late husband’s estate. She is concerned that they are favouring their personal interests in determining the stance they should take as administrators, in the various proceedings.

[11] While Mr Hindle, for Ms Farquhar, was unable to point to any direct evidence of misconduct or hostility towards Ms Farquhar, he submitted that evidence about the way in which the litigation had, in fact, been conducted justified her view. He described the daughters’ litigation stance as amounting to “a transparently self- serving campaign to maximise the return from their father’s estate for themselves”. Mr Hindle contends that they are incapable of acting in an objective or even-handed manner, as trustees and executors.

The statutory tests

[12] The application is brought in reliance on s 21 of the Administration Act 1969 and s 51 of the Trustee Act 1956. The former deals with the position of an executor.7

The latter addresses removal of trustees. Those provisions (relevantly) state:

(a) Section 21 Administration Act 1969:

21 Discharge or removal of administrator

(1) ... where it becomes expedient to discharge or remove an administrator, the Court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his

6 Property (Relationships) Act 1976, ss 61–65. Although issued in the Family Court, the parties have consented to an order transferring it to this Court. That will enable it to be heard contemporaneously with this proceeding.

7 The term “administrator” in s 21 of the Administration Act 1969 is defined to include an

executor: s 2.

place, on such terms and conditions in all respects as the Court thinks fit.

(2) The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3) Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1) of this section) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or they had been originally appointed as the administrator or administrators.

....

(b) Section 51 Trustee Act 1956:

51 Power of Court to appoint new trustees

(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

(2) In particular and without prejudice to the generality of the foregoing provision, the Court may make an order appointing a new trustee in substitution for a trustee who—

(a) Has been held by the Court to have misconducted himself in the administration of the trust; or

(b) Is convicted, whether summarily or on indictment, of a crime involving dishonesty as defined by section 2 of the Crimes Act 1961; or

(c) Is a mentally disordered person within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or whose estate or any part thereof is subject to a property order made under the Protection of Personal and Property Rights Act

1988; or

(d) Is a bankrupt; or

(e) Is a corporation which has ceased to carry on business, or is in liquidation, or has been dissolved.

(3) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.

(4) Nothing in this section shall give power to appoint an executor or administrator.

(5) Every trustee appointed by the Court shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.

(emphasis added)

I approach the removal application by reference to the “expedience” test that applies

under both provisions.

[13] Mr Hindle contends that, in the circumstances of this case, the following principles are applicable:

(a) The starting point is the Court’s duty to see estates properly administered and trusts properly executed.8

(b) This jurisdiction involves a large discretion which is heavily fact- dependent.9

(c) The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration,10 but ultimately the question is as to what is expedient in the interests of the

_{beneficiaries.}11

8 Kain v Hutton CA23/01, 25 July 2002 at para [19], citing Letterstedt v Broers (1884) 9 App Cas

_{371 (PC) at 385–86. See also Harsant v Menzies [2012] NZHC 3390 (Ellis J) at para [57].}

9 _{Crick v McIlraith [2012] NZHC 1290 (Associate Judge Osborne) at para [16].}

10 _{Harsant v Menzies [2012] NZHC 3390, at para [57].}

11 Crick v McIlraith [2012] NZHC 1290 at para [16] and Harsant v Menzies [2012] NZHC 3390, at

(d) Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.12

(e) Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.13

(f) The principles for the exercise of the Court’s discretion are the same, whether an application is made pursuant to s 51 of the 1956 Act or s

21 of the 1969 Act.14

[14] On the other hand, Mr Muir, for Ms Nunns and Ms Clarke, in their capacity as administrators, submits that they are acting appropriately and there is no basis on which to remove them. Mr Muir relies on the fact that their decisions as administrators are made to protect the trust assets for the benefit of those entitled to them. He says that, because Ms Nunns and Ms Clarke are the only beneficiaries (in any real sense), they must be entitled to act in their own interests. Mr Muir further submits that, in those circumstances, there can be no conflict between their duties as administrators and their personal interests as beneficiaries.

Ms Farquhar’s complaints

[15] In her affidavit in support of the removal application, Ms Farquhar endeavours to articulate her concerns about the administrators’ conduct.

[16] The first issue concerned their stance in relation to the interest Ms Farquhar claims in part of the Nihill Crescent subdivision. Ms Farquhar asserts that Ms Jeffery and she are beneficial owners of the land identified as Lots 2 and 3, now

_{45D and 45E Nihill Crescent.}

12 _{Harsant v Menzies [2012] NZHC 3390, at para [55].}

13 Crick v McIlraith [2012] NZHC 1290 at para [16](d). See also Harsant v Menzies [2012] NZHC

_{3390, at para [57].}

14 Harsant v Menzies [2012] NZHC 3390, at para [54] and Crick v McIlraith [2012] NZHC 1290 at

[17] Ms Farquhar’s concern is that Mr Clarke’s daughters are not being even- handed in relation to that claim. Further, she complains that the burden of costs in opposing the claim is thrown largely upon the estate, rather than Ms Nunns and Ms Clarke personally.

[18] As illustrations of the type of partiality alleged, Ms Farquhar points to affirmative defences to her claim and a pending application to strike out those that are based on equitable principles. Ms Farquhar deposes that Ms Jeffery has acknowledged her claim and (she asserts) the solicitors who acted on the subdivision of the property have provided documents that support it.

[19] Another concern is that while separate counsel now represent Ms Nunns and Ms Clarke in their differing capacities, that has happened relatively late in the piece. The bulk of attendances had been undertaken by persons instructed in the daughters’ capacity as administrators, meaning that the costs of those steps have been borne by the estate. It appears that Mr Carter was instructed to act for the daughters in their personal capacity sometime between 28 August 2012 and 10 September 2012. The present claim was filed on 4 September 2012.

[20] A third example concerns what Ms Farquhar asserts was the need to issue “unnecessary proceedings” in Queensland. That arose, she says, because the administrators took the position that because the family home was real property and was not in New Zealand, the Courts in this country had no jurisdiction to deal with it under the 1976 Act. Ms Farquhar’s response is that the value of the property could be taken into account on settlement of issues raised in the various proceedings. Thus, it was unnecessary for her to issue separate proceedings. She says she did so only to respond to the daughters’ position.

[21] Another issue arises in relation to some proceedings brought before the Weathertight Homes Tribunal. Ms Farquhar’s complaint relates to her concern that, in the absence of intervention from her counsel, all costs (in respect of an issue that also involved a separate trust) would have been borne by the estate; rather than the sum of approximately $30,000, or 35% eventually agreed.

The administrators’ response

[22] On behalf of both administrators, Ms Nunns has provided an affidavit responding to Ms Farquhar’s concerns. In summary, they wish to retain their status “to honour the trust that [their] father showed towards” them. They also have concerns about additional costs that would be incurred if a replacement administrator were appointed. Ms Nunns gives evidence that they have carried out much work in administering the estate, to date without payment.

[23] Ms Nunns indicates that the active defence of Ms Farquhar’s claim to entitlement to a proprietary interest in 45D and 45E Nihill Crescent is being funded by the estate. However, she deposes, the administrators are not taking an active role in the proceedings brought under either the 1949 or 1955 Acts. The costs of those proceedings are being met by Ms Nunns and Ms Clarke personally.

[24] In relation to Ms Farquhar’s contested claims to ownership of land within the Nihill Crescent subdivision, Ms Nunns points to five specific issues on which the administrators rely to support their view that the claim should fail. In Ms Nunns’ own words, they are:

8.1 [Ms Farquhar’s] interest in 45D and 45E Nihill Crescent was extinguished prior to the ownership being transferred into the name of the deceased (as to a 2/3 share).

8.2 It is unsurprising that [Ms Jeffery] acknowledges [Ms Farquhar’s] claim as the claim is to her benefit because it asserts that she has an interest in the estate’s property despite [Ms Jeffery] having entered into a property sharing agreement to the contrary. I also note that the [Ms Jeffery] is a friend of [Ms Farquhar].

8.3 An analysis of [Ms Farquhar’s] and the deceased’s bank accounts have shown that by 23 June 2010 the deceased had repaid [Ms Farquhar] the $200,000 that she says she contributed towards the development.

8.4 [Ms Farquhar] agreed for her interest in 45D and 45E Nihill Crescent to be bought out by the deceased. Prior to the transfer of the 2/3 share in the property to the deceased, [she] agreed with the deceased, [Ms Jeffery] and Architectural Homes 2000 Limited that she would be bought out of her interest in 45D and 45E Nihill Crescent for a payment of $150,000 plus interest which she received. Annexed marked “A” is an email from Glaister Ennor to the second defendant dated 6 December 2010. Annexed marked “B” is an email from [Ms Jeffery] to [Ms Farquhar] dated 6 December 2010, and

annexed marked “C” is an email from the plaintiff to Glaister Ennor dated 7 December 2010. The “Graham” referred to in [Ms Jeffery’s] email is [Ms Jeffery’s] husband who was also a director and shareholder of Architectural Homes 2000 Limited.

8.5 In addition to the $200,000 the deceased paid [Ms Farquhar], the deceased and the Estate have contributed considerable sums towards the development of 45D and 45E Nihill Crescent. The deceased also met [Ms Farquhar’s] and the other vendors liabilities to Mr and Mrs Horne pursuant to the sale and purchase agreement dated 1 August

2005 when he and [Ms Jeffery] purchased the property back from Mr and Mrs Horne. The dwelling on 45C Nihill Crescent had to be substantially remediated, including recladding, in order to obtain a code compliance certificate.

[25] Ms Nunns confirms that, in relation to the Queensland proceedings, the administrators are not contending that the property cannot be considered by the Court in relation to the 1949 Act claim. In response to the complaints about the way in which the claim before the Weathertight Homes Tribunal was considered, they say that independent legal advice was taken before the settlement was entered into. That advice addressed the question of apportionment of the settlement sum between the estate and the other trust (Water Treatment Trust) of which they were also trustees. They deny that the whole of the cost of the claim before the Tribunal would have been met by the estate, without Ms Farquhar’s intervention.

The differing roles of Ms Nunns and Ms Clarke

[26] I summarise the differing duties and interests of Ms Nunns and Ms Clarke, in respect of the various proceedings issued.

[27] In relation to the 1955 Act claim, it is plain that Ms Farquhar’s position must be strong. She was married to Mr Clarke for almost nine years, yet her interest in the estate is relatively meagre. In 1955 Act claims, the administrators are obliged to take a neutral position, and generally assist the Court with the provision of information about the financial position of the estate. The contest is between the claimant and the beneficiaries of the estate, all of whom have the opportunity to be represented at the hearing. The interest of Ms Nunns and Ms Clarke in defending those proceedings is personal, to protect their inheritance.

[28] In the 1949 Act claim, the custom has been for administrators to take a neutral position and leave the claimant and beneficiaries to argue whether the claim is justified. In contrast to the 1955 Act claim (where provision is made out of the estate for a claimant on a discretionary basis by the Court), a testamentary promises claim is designed to establish a prior right to property through a promise made by the Will-maker before his or her death. In all practical terms, a defence of such a claim is to prevent that prior claim from reducing assets available for beneficiaries under the Will. In those circumstances, the interest of Ms Nunns and Ms Clarke is primarily personal in nature.

[29] Although Mr Muir sought to argue that the remaining causes of action and proceedings were brought, as it were, by a stranger to the trust, thereby necessitating a positive defence by the administrators to protect the interests of named beneficiaries, that approach does not completely reflect the nature of the claims. Assuming, for the moment, that Ms Nunns and Ms Clarke are correct in their contention that the constructive or resulting trust proceedings are subsumed within the code created by the 1976 Act, both the 1976 Act proceedings and those brought in the District Court of Queensland reflect an attempt by Ms Farquhar to establish a personal right to property in the names of the spouses, individually or together, during the period of their marriage. There is a personal interest in Ms Nunns and Ms Clarke opposing those proceedings to protect their inheritance.

Analysis

[30] This is a summary application to remove the administrators and trustees. On such an application, there is no ability to test a deponent’s evidence by cross- examination. In the absence of a credible foundation against which a witness’s evidence could be disbelieved, I must act on the premise that what the witness says is true.

[31] The circumstances in which a Court will remove an administrator or a trustee, under the statutory provisions in issue,15 were explained by Myers CJ, delivering the

15 See para [12] above.

principal judgment of the Court of Appeal in Hunter v Hunter.16 The issues raised must be considered in a “macroscopic and not microscopic fashion”.17 The removal jurisdiction is ancillary to the Court’s principal duty to see that a trust is properly executed.18

[32] Generally, Myers CJ observed, if “charges of misconduct are either not made out, or are greatly exaggerated, ...” any such issue falls to be dealt with as a matter of costs. An exception to that general rule arises if the Court were satisfied that “the continuance of the trustees would prevent the trusts being properly executed”.19 The thrust of those observations were reflected in other judgments given in that case.20

[33] A similar approach was taken more recently by the Court of Appeal, in Kain v Hutton.21 In giving the judgment of the Court of Appeal, Anderson J acknowledged the ability of the Court to act summarily, but emphasised that, in each case, the question was “whether the circumstances warrant its exercise”.22

[34] The authorities suggest strongly that where there is a conflict between the duty of an administrator and the beneficiaries, removal is likely.23 But, so far as I am aware, there are no cases in the books to support the proposition that the jurisdiction to remove will be exercised where the administrator is also the substantive beneficiary, in the absence of proved misconduct or hostility towards the claimant who is bringing the proceedings against the estate.

[35] In Crick v McIlraith,24 Associate Judge Osborne observed that “hostility as

between administrators or trustees and their beneficiaries is not of itself a reason for

_{removal”. His Honour added that such hostility would “assume relevance if it}

16 _{Hunter v Hunter [1938] NZLR 520 (CA).}

17 At 528, adopting what was said by Viscount Haldane in Great Western Railway Co v Owners of

_{SS “Mostyn” [1928] AC 57 (HL) at 62.}

18 _{At 529, citing Letterstedt v Broers (1884) 9 App Cas 371 (HL) at 386.}

19 _{Hunter v Hunter [1938] NZLR 520 (CA) at 529 (Myers CJ).}

20 _{For example, Blair J at 540, Kennedy J at 550, Callan J at 551–552 and Northcroft J at 554.}

21 Kain v Hutton CA 23/01, 25 July 2002 at para [19], citing from Letterstedt v Broers (1884) 9

_{App Cas 371 (HL) at 385–386.}

22 _{Ibid, at para [20].}

23 For example, Farnsworth v Farnsworth HC Auckland M1767/97, 12 January 1999 (HC); Re

_{O’Reilly (1992) 9 PRNZ 51 (HC); Harvey v Harvey HC Auckland CP736/95, 10 June 1996.}

24 Crick v McIlraith [2012] NZHC 1290.

prejudices the interests of the beneficiaries”.25 Taking that proposition a step further, the Supreme Court of Western Australia, in Porteous v Rinehart,26 held that the Court’s inherent power to remove a trustee was one “which will be exercised cautiously” and only in “exceptional circumstances”. In that case, White J pointed to

authority which could be regarded as suggesting that the rule of equity that a Court will not permit a party to place himself or herself in a situation in which his or her interest conflicts with duty may not necessarily be applicable to a “testamentary executor”, acting as such.27

[36] The touchstone for removal of both an administrator and a trustee is an assessment of what is “expedient”. In Crick, Judge Osborne opined that the term “imparts considerations of suitability, practicality and efficiency”; thus, in the context of estate administration the “overarching question” is: “will removal of the administrator be a suitable, practical and efficient means of advancing the interests

of the estate and of its beneficiaries”.28

[37] Does the evidence go far enough to justify removal, on application of those principles?

[38] I must respect the deceased’s choice of executors and trustees. His decision demonstrates that he trusted his daughters to fulfil the duties and functions cast on them by law. In that context, there is nothing in the evidence to suggest any misconduct on the part of either Ms Nunns or Ms Clarke, in their administration of the estate. It is clear that their task has been difficult. Yet, they appear to have undertaken it competently. Proper execution of the terms of the Will is not at risk.

[39] Ms Nunns deposes that costs in association with the personal interests of herself and her sister are being met by them, not out of the estate funds. There is no reason to doubt that deposition on a summary application of this type. While the use

_{of separate counsel to represent two human beings with differing interests can}

25 _{Ibid, at para [16](d).}

26 _{Porteous v Rinehart (1998) 19 WAR 495 (SCWA) at 507.}

27 _{See also, Hobkirk v Ritchie (1934) 29 Tas LR 14 (SC Tas) at 47.}

28 Crick v McIlraith [2012] NZHC 1290, at para [18]. See also, Re Estate of Roberts (1983) 20

NTR 13 (SC NT) at 17, in which O’Leary J defined the term “expedient” by reference to the Oxford English Dictionary, to mean “conducive to advantage in general, or to a definite purpose; fit, proper, or suitable to the circumstances of the case”.

sometimes be problematic,29 in this particular case, there is no material difference between the personal interest of Ms Nunns and Ms Clarke in preserving their inheritance and their duty as administrators to protect the estate for the benefit of those to whom it has been left by the deceased.

[40] While I have no doubt that Ms Farquhar believes that Ms Nunns and Ms Clarke are exhibiting a degree of hostility towards her, the evidence does not go far enough to persuade me that is so. The steps taken by the administrators are unremarkable. In the context of contested litigation, Ms Nunns and Ms Clarke are entitled to take a robust approach in defending their right to property left by their father to them and, so far as the estate’s defence of the proceedings brought in the equitable jurisdiction of the Court is concerned, they have identified reasons why the

claim is opposed.30 It is not for me to second-guess the correctness or otherwise of

the points they have advanced. They are matters to be determined by the Court in due course.

[41] If it becomes clear to the Judge who hears the substantive proceeding that there has been illegitimate hostility emanating from the administrators to Ms Farquhar (or that some of the points taken should not have been) such conduct could be met by an order for costs against the administrators personally.31 The prospect of such an order is usually a sufficient deterrent to administrators acting in that way.

Result

[42] For those reasons, I am not satisfied that it is “expedient” to remove Ms Nunns and Ms Clarke, either as an executor or as a trustee.32 The application is dismissed.

[43] I reserve questions of costs. They will be dealt with by the trial Judge after he or she has heard evidence.

29 For example, see Judge Callaghan’s comments in Re Tunstall-Ashley (Deceased) [1998] NZFLR

688 (FC) at 703, where the Judge referred to inherent difficulties in instructions being obtained from persons with different interests.

30 _{See para [24] above.}

31 _{Hunter v Hunter [1938] NZLR 520 (CA) at 529. See also para [32] above.}

32 Adopting the approach to the interpretation of the term “expedient”, set out in paras [35]–[36]

above.

[44] On 15 May 2013, Associate Judge Abbott made a number of procedural directions to have the proceeding readied for a substantive hearing during the week of 25 November 2013. The next event is an application to strike out the cause of action based in equity, set down for 10am on 6 August 2013. Counsel should consider whether that needs to proceed, having regard to the issue of the 1976 Act proceedings and their transfer to this Court.

[45] I have some concerns that the hearing may take more than five days to complete. Given the need to transfer the 1976 Act proceeding to this Court, it seems to me that the estimated trial duration and the provision of evidence for it should be subject to judicial oversight. If it were practicable to do so at this stage, I recommend the assignment of a Judge to hear the proceeding and to conduct case

_{management in the period preceding it.}

Delivered at 4.00pm on 3 July 2013

Solicitors:

Morgan Coakle, Auckland

McVeagh Fleming, Auckland

Rob Webber and Associates, Auckland

Counsel:

R C Hindle, Auckland

B P Carter, Auckland

J McCartney, Auckland

P R Heath J