Smith v Ball [2016] NZHC 2249 (23 September 2016)

Last Updated: 10 October 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-604555 [2016] NZHC 2249

IN THE MATTER	of the Administration Act 1969
IN THE MATTER	of the Estate of Raymond Alexander Smith (Deceased)
BETWEEN	SAHRA LING SMITH Applicant
AND	ROGER NEVILLE BALL Respondent

Hearing:	At Auckland On the papers
Counsel	KP McDonald for applicant NN Kearney for respondent
Judgment:	23 September 2016

_{JUDGMENT OF FAIRE J}

This judgment was delivered by me on 23 September 2016 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Kevin McDonald & Associates, Auckland

Schnauer & Co, Auckland

Smith v Ball [2016] NZHC 2249 [23 September 2016]

The application

[1] This judgment deals with an application for costs made in respect of an application for an order nisi made by the applicant.

Background

[2] The applicant applied on a without notice basis for an order that Roger Neville Ball, the executor named in the will of the deceased Raymond Alexander Smith, show cause why probate of the will of the deceased should not be granted to the applicant alone.

[3] The application was filed on 23 March 2016.

[4] Senior Deputy Registrar Tanusha Iyengar made an order nisi on 28 April

2016 in the following form:

After reading the Interlocutory Application without notice dated 17 March

2016 of the applicant Sahra Ling Smith of 1004/50 Claremont Street, South Yarra, Melbourne, Copywriter, for an order nisi calling upon Roger Neville Ball of 18 Valley Road, Northcote, Auckland, Surveyor, the executor named in the Will of the Deceased to show cause why probate of the Will of the Deceased should not be granted to Sahra Ling Smith of 1004/50 Claremont Street, South Yarra, Melbourne, Copywriter, being a person interested in the estate, and the affidavit of Sahra Ling Smith sworn on 19 February, 2016, along with the Memorandum dated 17 March, 2016 of counsel in support of the application lodged in this Court,

AND WHEREAS Roger Neville Ball, the executor named in the Will of the Deceased, has neglected or refused to prove the Will or to renounce his right and title to probate and execution of the Will,

AND WHEREAS 3 months have elapsed since the death of the Deceased, Senior Deputy Registrar Tanusha Iyengar at Auckland, in Chambers, acting

under Rule 27.14 of the High Court Rule ORDERS that unless the said executor named in the Will, shows cause to the High Court at the sitting to be held at 9 am at Auckland on the 14^th of June 2016 why probate of the Will should not be granted to Sahra Ling Smith alone, the Court may make such order for the administration of the estate, and as to costs, as appears just.

[5] In accordance with the order nisi, Roger Neville Ball was served with the application, the supporting papers and order on 27 May 2016.

[6] In accordance with the order nisi, the application was called before me on

14 June 2016. Counsel for the applicant appeared and advised me that he had the consent of counsel for Mr Ball. My minute recording the position provided as follows:

[2] Counsel are agreed that I should adjourn the application, which I now do, to 9 am on 16 August 2016. That is on the basis that the respondent shall file and serve, by 5 July, notice of opposition and affidavits in opposition and that the plaintiff will file and serve, by

26 July, any affidavits in reply.

[7] Mr Ball’s solicitor filed a notice on 11 July 2016, in which he advised that

Mr Ball did not oppose the claim, but otherwise advised that:

... but appears in order to:

1. reserve the respondent’s rights in the event that any other person becomes a party to this proceeding, or that a party, including the applicant, takes steps in the proceeding that is against the respondent’s interests; and

2. to be heard on costs.

[8] Counsel for the applicant filed a memorandum on 13 July 2016. It noted the respondent’s non-opposition to the order sought and other matters mentioned in the respondent’s solicitor’s memorandum. It invited the court to make an order after a review of the papers only, and to reserve costs.

[9] The respondent’s solicitor’s notice and counsel for the applicant’s memorandum were not referred to me until approximately 15 August 2016. On that day, I issued the following minute:

[1] I thank counsel for the memorandum which was apparently filed on

13 July 2016 and has just been referred to me.

[2] I also thank counsel for Mr RN Ball for his memorandum and for the notice of appearance reserving rights.

[3] In view of the position adopted by Mr Ball, I order that probate of the will of the deceased Raymond Alexander Smith of Takapuna, Auckland, Builder be granted to Sahra Ling Smith of 1004/50

Claremont Street, South Yarra, Melbourne, Copywriter. I reserve the question of costs. If counsel cannot agree, memoranda shall be filed in support, opposition and reply at seven day intervals.

[4] In view of the orders made in this minute, appearances on 16 August

2016 at 9 am are excused.

[10] The applicant’s affidavit in support covers a number of matters not relevant to the specific application.

[11] After referring to the content of her late father’s will and the fact that she is the only named beneficiary in it, she sets out her understanding of her father’s affairs and, in particular, what she understands to be the assets of the estate. She quite properly identifies that she is not yet in a position to prove estate ownership of those assets. The affidavit records meetings with Mr Ball and herself and the solicitor acting at the time. No resolution could be obtained. It is unfortunate that, in the papers, no formal invitation was given to Mr Ball to renounce his executorship. His present lawyers say that the reason why probate was not sought by him was because of the size of the estate as understood by Mr Ball and that an application for probate accordingly was not required.

[12] The applicant’s affidavit indicates that further proceedings are almost certain to follow, which will clarify what are the assets of the estate and, potentially, what should be done in respect of a trust settled by the deceased.

The current application

[13] The current application is made pursuant to Part 27, Subpart 2 of the High

Court Rules. It was made pursuant to r 27.4 as a without notice application.

[14] The application follows the suggested procedure contained in Dobbie’s

Probate and Administration Practices.¹

[15] The application was made in reliance on s 19 of the Administration Act 1969. The relevant parts of that section provide:

1. John Earles and others Dobbie’s Probate and Administration Practice (6^th ed, LexisNexis, Wellington, 2014) at [3.7].

19 Proceedings where executor neglects to prove will

(1) In any case where any executor named in a will neglects or refuses to prove the will, or to renounce probate thereof, within 3 months from the death of the testator, the Court may, upon the application of any other executor or executors or of any person interested in the estate or of Public Trust or of the Māori Trustee or of any creditor of the testator, grant an order nisi calling upon the executor who so neglects or refuses to show cause why probate of the will should not be granted to that executor alone, or with any other executor or executors or, in the alternative, why administration should not be granted to the applicant or some other person.

(2) Upon proof (whether by affidavit or otherwise) of service of the order, or upon the Court dispensing with service of the order, if the executor who is so called upon does not appear or upon cause being shown, the Court may make such order for the administration of the estate, and as to costs, as appears just.

...

[16] Dobbies’ Probate and Administration Practice provides a precedent form for the affidavit in support of such an application, which is Form 54.² The critical component for the purposes of this particular case that an affidavit would usually set out is the reason why an application for probate has not been made, or that the named executor has refused to do so and has also refused to sign a deed renouncing his appointment. In this particular case, I have reviewed the affidavit filed in support

and I can find no specific request to Mr Ball to renounce his executorship.

[17] Out of an abundance of caution I issued a minute to counsel for the applicant inviting the filing of a memorandum on the issue of whether there had been an invitation to renounce executorship. A memorandum has now been filed. It acknowledges that no specific request was made to the respondent to renounce the executorship. It sets out a number of matters, however, relating to the potential transfer of assets in the estate to the applicant.

[18] What the above position reveals to me is that so far as this specific application is concerned having regard to the fact that there has been no prior invitation to renounce executorship, an order for costs is not justified. An application would have had to be made in any event by the applicant for appointment

_{as executor. The specific step taken by the respondent simply followed the making}

² At 700–702.

of that application. For that reason, I conclude that an order for costs against the respondent on this particular application is not justified.

[19] I make it plain that my ruling on this matter does not have any effect on subsequent proceedings that may issue between the applicant and the respondent in relation to the assets of the estate of the late Mr Smith. They will be discrete matters that will be determined in those separate proceedings, should they be necessary.

Result

_{[20] The applicant’s application for costs against the respondent is refused.}

JA Faire J