Perkinson v Riddle [2016] NZHC 257 (24 February 2016)

Last Updated: 16 March 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2015-488-135 [2016] NZHC 257

IN THE ESTATE	of Geoffrey Peniston Elliot Clarkson
AND IN THE MATTER	of s 75 of the Trustee Act 1956
BETWEEN	STEPHEN WAYNE PERKINSON AND EAN INNES BROWN Applicants
AND	CAROL JOAN RIDDLE Respondent

Telephone Conference:	23 February 2016
Appearances:	A Jackson for the Applicant
Judgment:	24 February 2016

_{JUDGMENT OF THOMAS J}

This judgment was delivered by me on 24 February 2016 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{257Date:...............................}

Counsel:

_{A G Jackson, Whangarei.}

PERKINSON AND BROWN v RIDDLE [2016] NZHC 257 [24 February 2016]

Introduction

[1] The applicants, as executors of the estate of the deceased, Geoffrey Peniston Elliot Clarkson, have applied for an order barring a claim by the respondent, Carol Riddle, against the estate.

Background

[2] The application is supported by a number of affidavits from the executors of the estate.

[3] Geoffrey Clarkson died on or about 16 August 2014. Probate of his will and codicil was granted on 18 October 2014.

[4] By an email dated 19 March 2015, to the deceased’s accountants, the respondent indicated that she had received a small portion only of the money which she apparently considered the deceased owed her and sought to discuss how to recover the balance (the claim).

[5] The accountants replied by letter dated 7 April 2015 providing detail of payments made to the respondent according to bank records. Those records appear to indicate that the respondent had received more than the amount she claimed was outstanding.

[6] The respondent replied on 11 April 2015 by email, advising that she was seeking confirmation in respect of certain transfers of money so she could calculate what remained and would be in touch.

[7] The applicants then caused notice pursuant to s 75 of the Trustee Act 1956 (the Act) to be served on the respondent. The notice advised the respondent that the executors rejected the claim against the estate of the deceased. It advised the respondent that, in accordance with s 75 of the Act, she must within three months from the date of service of the notice take legal proceedings to enforce the claim and prosecute it with all due diligence. Failing that, the executors would apply to the

High Court for an order barring the claim and that the estate may then be administered or distributed without regard to the claim.

[8] Service of the notice was effected by personal service on 6 August 2015.

[9] The respondent was personally served with the notice of originating application for a barring order together with the affidavits in support on

11 November 2015.

[10] Neither of the applicants have heard from the respondent since her email of

11 April 2015.

[11] The third affidavit in support of the application was served on the respondent on 28 January 2016.

[12] The applicants attempted to serve the memorandum of their counsel on the applicant on 10 February 2016. The affidavit of service states that service was effected by “abode service”. The affidavit stated that the process server attempted service personally on the respondent who:

Opened the door and explained that she was not accepting service nor signing anything. [sic] She appeared frustrated and stated she was mad that she was still being served.

Steps taken by the respondent

[13] I am satisfied from the evidence that the respondent has taken no steps to prosecute the claim since 11 April 2015.

[14] Notice pursuant to s 75 of the Act was served on the respondent but she has not, within the time required, taken steps to enforce the claim and prosecute the proceedings with all due diligence.

[15] I am satisfied the applicants have taken more than reasonable steps to advise the respondent of these proceedings and to provide her with an opportunity to be heard.

Result

[16] I am satisfied that the applicants have complied with the requirements of ss

75(1) and (2) of the Act. The respondent, having taken no steps, has not satisfied the Court that she has commenced any proceedings and is prosecuting them with all due diligence.

[17] For those reasons, pursuant to s 75(3) of the Act, I make an order barring the claim.

_{[18] The applicants do not seek costs in this matter.}

Thomas J