IAG New Zealand Limited v Shaw [2022] NZHC 2829 (31 October 2022)

Last Updated: 18 May 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1156 [2022] NZHC 2829

IN THE MATTER	Of an appeal against a decision of the District Court at Manukau
BETWEEN	IAG NEW ZEALAND LIMITED Plaintiff
AND	KAREN DORIS KATHLEEN SHAW Defendant

Hearing:	27 September 2022
Appearances:	D Cooper KC and R Hargreaves for Plaintiff N Woods for Defendant
Judgment:	31 October 2022

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 31 October 2022 at 4:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Duncan Cotterill (P Smith and R Hargreaves), Auckland Rice Craig, Solicitors, Papakura

Counsel: Dr D Cooper, Auckland

IAG NEW ZEALAND LIMITED v SHAW [2022] NZHC 2829 [31 October 2022]

[1] On 9 June 2022, Judge D J Clark entered summary judgment in favour of Karen Doris Kathleen Shaw against IAG New Zealand Limited (IAG) in the sum of

$80,000.¹ IAG now appeals against the District Court decision.

Factual background

[2] Ms Shaw was the de facto partner of Stanley James Norris who died intestate on 10 January 2018. Ms Shaw and Mr Norris had been in a de facto relationship for approximately five years, since at least 2013 when Mr Norris had declared their relationship to Work and Income, the agency which administers New Zealand Superannuation. At the time of his death, Mr Norris was the registered owner of a motorhome – a 1988 Isuzu FSR motor vehicle, registration number HCF891. Ms Shaw and Mr Norris had lived together in the motorhome for a period of time before Mr Norris suffered a major stroke in May 2016 and entered care.

[3] At the time of Mr Norris’ death, the motorhome was insured by Lumley, a business division of IAG, for an agreed value of $80,000. Ms Shaw had stored the motorhome in an outdoor storage area at Podges Motel, Mercer, while she was staying with her daughter.

[4] On 21 January 2018, five days after Mr Norris’ funeral on 16 January 2018, two sons of Mr Norris, Mr Brian Norris and Mr Mark Norris, arrived at Podges Motel with bolt cutters and a locksmith and took possession of the motorhome. They relied on a short handwritten letter signed by Mr Norris and dated over five years earlier on 3 September 2012, which stated in part:

I, Stanley James Norris, wish for my son Mark Bruce Norris to be the sole beneficiary of all and any assets of witch [sic] I may have ... at the time of my death ...

[5] The motorhome was retained by Mr Norris’ sons until it was uplifted from Maungaturoto by IAG’s agent on 28 July 2022, almost two months after the date of the District Court decision. On or about 24 August 2022 the motorhome was sold as salvage for the net sum of $13,775.85. That sum has been deposited into the trust account of IAG’s solicitors pending the outcome of this appeal.

¹ Shaw v IAG New Zealand Limited [2022] NZDC 9003.

Administration of estate

[6] It is common ground that Mr Norris’ handwritten letter dated 3 September 2012 does not meet the formal requirements for a will, but his sons have not made application to have it validated as a will under the Wills Act 2007. The letter was written by Mr Norris before or at the commencement of his de facto relationship with Ms Shaw and there is no evidence as to what his testamentary intention would have been at the time of his death.

[7] Instead, Ms Shaw applied without notice to the High Court on 1 May 2019 for letters of administration on intestacy on the basis she was the surviving de facto partner of Mr Norris who was entitled to succeed on the intestacy. In doing so she swore that she made full inquiries and searches for a will made by Mr Norris and she was satisfied that Mr Norris died without leaving a will and was wholly intestate. Ms Shaw was granted letters of administration on 28 August 2019 authorising her to administer Mr Norris’ estate, to demand and recover whatever debts belonged to Mr Norris’ estate and to pay whatever debts Mr Norris owed.

[8] Mr Norris’ sons are critical of Ms Shaw for not giving them notice of her application for letters of administration and not disclosing to the Court the existence of the handwritten letter dated 3 September 2012.

Police complaint

[9] On 22 January 2018, the proprietor of Podge’s Motel advised Ms Shaw that the family had taken the motorhome. Ms Shaw says that she immediately went with her daughter to the Pukekohe Police Station to make a complaint. There is however no record in evidence of this initial complaint. Ms Shaw later made a comprehensive six page typewritten statement to Constable Richard Wright on 28 February 2018. In it she confirmed that she had not given permission to anyone to remove the motorhome or take any of her personal items that were in the motorhome at the time it was taken. She concluded:

I believed I should hold possession of the motorhome until the executive [sic] of Stanley’s estate would be appointed or until otherwise directed by the Courts.

[10] The Police then apparently spoke to another of Mr Norris’ sons, Mr Steven Norris, and some of Ms Shaw’s personal items were returned to her. Mr Steven Norris told the Police that his brothers, Messrs Mark and Brian Norris, retrieved the motorhome because Mr Mark Norris believed he had a right to it.

[11] The Police later said that the complaint was filed on 11 April 2013 [2018?] and the incident recorded as a civil dispute. After Ms Shaw was appointed administrator of Mr Norris’ estate on 28 August 2019, she contacted the Police once again, on 9 September 2019, this time as administrator of the estate and legal owner of the motorhome, to request that the Police recover the motorhome or lay charges. She confirmed that Mr Steven Norris would not divulge the motorhome’s whereabouts. She also advised the Police that IAG had declined her insurance claim and she had lodged an appeal with the Insurance Ombudsman.

[12] The Police then listed the motorhome on their website of stolen vehicles as “reported stolen 2019-10-17.” It stated:

If the vehicle is being driven or you believe the driver of the vehicle or the vehicle occupants are still nearby then please call 111 and ask for Police. If the vehicle appears to be abandoned then please advise Police of its location by calling 105.

[13] Notwithstanding listing the motorhome as reported stolen, the Police took no further action on Ms Shaw’s complaint. Eighteen months later Police confirmed, on 7 May 2021, that the matter was to remain a civil matter until ownership had been established.

Insurance policy and claim

[14] Before his death, Mr Norris had taken out a policy of insurance for the motorhome underwritten by Lumley. It was a standard policy offered to members of the New Zealand Motor Caravan Association (NZMCA) by Covi Insurance. The policy had an agreed value of $80,000. The period of insurance was from 5 July 2017 to 5 July 2018.

[15] The cover was described as follows; “Lumley will indemnify the insured for accidental loss to an insured vehicle during the period of insurance”. An accident was

defined as “a happening or event occurring in New Zealand that is unintended and unexpected by the insured” while loss was defined as “sudden physical loss, sudden physical damage or sudden physical destruction.

[16] On 28 June 2018, still within the period of insurance, Ms Shaw lodged a claim on behalf of Mr Norris’ estate, although she was not yet the administrator of his estate. She stated that she was not in a state to stay home alone after the death of Mr Norris. The motorhome was therefore parked in a fenced campground with a locked gate. She stated she was still unable to recover the motorhome and gave the Police report number.

[17] The period of insurance expired on 5 July 2018 without being renewed. Ms Shaw says she was advised by a Covi Insurance employee not to pay for a renewal of the policy as the motorhome had been reported stolen.

[18] On 30 August 2018, Lumley advised Ms Shaw that the claim appeared to relate to a civil dispute rather than a theft, which meant that there was no valid claim. On 10 September 2019, after Ms Shaw was appointed administrator of Mr Norris’ estate, Lumley again advised Ms Shaw’s lawyers that the claim was not accepted and had been closed due to lack of information or Police charges against any of Mr Norris’ sons.

[19] In October 2019, Lumley initiated further investigations into the circumstances surrounding removal of the motorhome. It was during this investigation that Lumley learned of the existence of the handwritten letter of 3 September 2012. Lumley interpreted this letter as recording that “Mr Norris gifted the vehicle to one of his sons, Mark Norris.” Lumley advised that it was unable to ascertain the whereabouts of the motorhome because Mr Mark Norris refused to disclose this information.

[20] Following this investigation, Lumley concluded that the claim amounted to a dispute among family members. On 16 December 2019, Lumley advised Ms Shaw that the claim was unable to be accepted. It recommended that Ms Shaw reclaim the motorhome instead of claiming it as theft under the policy.

[21] On 17 June 2020, Ms Shaw complained to the Insurance and Financial Services Ombudsman. As a result, Lumley initiated a further review of the claim. In a letter to Ms Shaw dated 2 July 2020, Lumley stated:

There is an ongoing dispute between you and Mr Norris’s children as to the ownership of the Vehicle. This means that it cannot be shown to be an event that constitutes a ‘loss’ under the policy. Stanley appears to have gifted the Vehicle to his son, Mark. As the ownership of the vehicle is uncertain, it cannot be established that you or the Estate, have necessarily suffered a ‘loss’ for the policy to cover. I acknowledge that the letters of Administration grant you the right to Stanley’s estate, unfortunately, it is not clear whether the vehicle is part of the estate, due to the note from 2012.

[22] Ms Shaw’s complaint to the Ombudsman was also unsuccessful. In a letter dated 4 November 2020, the Ombudsman stated:

Unfortunately, the Insurance & Financial Services Ombudsman Scheme (“the IFSO Scheme”) has not been able to require Lumley to pay the claim, because the IFSO Scheme cannot resolve a dispute about ownership or legal rights to the camper. This means that we cannot decide that Mr Norris’s son, Mr Mark Norris, had no legal right to the camper. As a result, you cannot prove that the Estate has suffered a loss within the scope of cover of the policy.

[23] On 22 February 2021, Ms Shaw filed the present proceeding.

District Court decision

[24] In his decision dated 9 June 2022, Judge Clark identified the primary issue as whether the insurance policy “responds to Ms Shaw’s claims”. The Judge summarised IAG’s argument as follows:²

[40] ... IAG says there has not been a loss of the motorhome which is a prerequisite to cover being available under the motorhome policy. The motorhome is in the possession of one of Mr Norris’ sons and it cannot therefore be lost. The issue over the ownership needs to be determined first and only once that has been determined, Ms Shaw’s claim can then be addressed at a full hearing if there was anything left to be adjudicated upon.

[25] The Judge, however, rejected the suggestion that there was a valid issue over ownership of the motorhome. The motorhome belonged to the estate of Mr Norris and accordingly Ms Shaw, as administrator of the estate, was the legal owner.

² Shaw v IAG New Zealand Limited, above n 1.

[26] The Judge found that the handwritten letter of Mr Norris dated 3 September 2012 had “no status at all” unless and until it was recognised in law as having any validity. Mr Norris’ sons had no claim to the assets of the estate or how it was administered in the absence of any proceeding issued by them. The Judge noted that the whereabouts of the motorhome had never been disclosed and found it had been unlawfully removed and unlawfully detained from its rightful owner, being Ms Shaw as administrator of the estate. The Judge therefore proceeded on the basis that there was no dispute over ownership and found that IAG was wrong to reject Ms Shaw’s claim on the basis that there was a dispute over ownership.

[27] The real issue for the Judge was whether the loss of the motorhome fell within the loss definition expressed in the policy. The Judge found that the objective interpretation of the policy wording must be that the policy will respond to a claim if there is an event which was unintended or unexpected which caused the sudden physical loss of the motorhome. The Judge noted IAG’s submission that the contested ownership of the motorhome can never be sudden physical loss in terms of the policy. IAG said that the motorhome had not been lost – one of the sons of Mr Norris had it. IAG submitted that deprivation loss is not a loss covered by the policy and Ms Shaw needed to issue proceedings for its recovery before the policy could respond.

[28] The Judge rejected IAG’s approach. He found that the action of seizing and taking possession of the motorhome caused a physical loss of the motorhome in the sense Ms Shaw, as legal owner, was no longer in physical possession of it. The Judge accepted there was an element of deprivation of the use of the motorhome, but the wording of the policy contemplated loss in that sense. The definition of physical loss in this context must include where the legal owner is deprived of its use. The Judge further found that there was no obligation on Ms Shaw to issue proceedings against Mr Norris’ sons to recover the motorhome.

[29] The Judge concluded:³

[85] The motorhome has been taken by Mr Norris’ sons who have no legal claim over it without the permission of the legal owner (Ms Shaw in her capacity as the Administrator) and without any intention to return it. It has

³ Shaw v IAG New Zealand Limited, above n 1, at [85]—[86].

been four years since this occurred and despite demands the motorhome has not been returned.

[86] If there was a genuine intention to return it, it would have already been returned. On that basis and in my view, Ms Shaw’s claim squarely fits within the definition of the motorhome policy and the motorhome policy must respond.

[30] IAG had failed to respond to Ms Shaw’s claim and therefore the Judge entered summary judgment for the sum of $80,000 in favour of Ms Shaw against IAG.

Summary judgment principles

[31] In Krukziener v Hanover Finance Ltd,⁴ the Court of Appeal summarised the approach to be taken to summary judgment applications:

[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1986] NZCA 112; [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1979] UKPC 13; [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel [1987] NZCA 193; (1987) 1 PRNZ 84 (CA).

Appellant’s submissions

[32] The appellant submits that the underlying issue in dispute was whether there had been a “loss” of the motorhome within the relevant period of insurance. Given the summary judgment context, the issue before the District Court was whether there was a “real question to be tried” as to whether there had been such a loss.

[33] In summary, the appellant submits:

(a) There was no “loss” of the motorhome within the period of insurance, which expired on 5 July 2018. Ms Shaw was not the administrator of

⁴ Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.

the estate during that period and had taken no steps to demand or request the return of the motorhome, although she had reported it to the Police as stolen. Mr Norris’ sons took possession of the motorhome in the belief that one of them, Mr Mark Norris, was entitled to it under the handwritten letter dated 3 September 2012.

(b) The insurance policy was not renewed and had expired when Ms Shaw was appointed administrator of the estate on 28 August 2019.

(c) Events after the expiry of the policy period are strictly irrelevant, but, in any event, they do not amount to a “loss” of the motorhome. When Ms Shaw eventually called for possession of the motorhome on 29 July 2021, Mr Norris’ sons responded through their lawyer to confirm that they held the motorhome on behalf of the estate and pending determination of rights to it. By the time of the hearing on 22 April 2022, Mr Mark Norris had confirmed through his lawyer that the motorhome was available for collection by Ms Shaw. The position therefore remained that there was no “loss” of the motorhome.

(d) The Judge erred in finding that there was no real question to be tried as to whether there was “loss” under the policy within the policy period.

[34] IAG submits that the Court should look first at the time Mr Norris’ sons took possession of the motorhome. Mr Norris had died intestate, and no administrator had been appointed. The estate, therefore, vested in the Crown on an interim basis under s 22 of the Administration Act 1969.

[35] IAG submits that Mr Norris’ sons had a reasonable basis for believing that Mr Mark Norris was entitled to the motorhome under the handwritten letter dated 3 September 2012. IAG submits that Mr Norris’ sons had not taken possession of the motorhome with the intention of depriving the estate of its ownership. To the contrary, they said they held it for the estate while the entitlement to it was determined.

[36] IAG notes that Ms Shaw did make a complaint to the Police, but there is no evidence of her making any request to Mr Norris’ sons for the return of the motorhome. Indeed, at the time Mr Norris’ sons took possession of the motorhome, Ms Shaw had no legal standing to demand its return given she was not the administrator of the estate. There was, therefore, no “loss” of the motorhome by the estate at the time it was taken. At that time, the motorhome was not “irrecoverable in all probability”, or “finally put beyond the estate’s reach”.

[37] IAG submits that the Judge did not directly address this issue because he considered the issues of ownership and loss at the time of the hearing in June 2022. In doing so, the analysis in the judgment wrongly assumed that Ms Shaw was the administrator of the estate when the motorhome was taken.

[38] Ms Shaw was subsequently appointed administrator in August 2019, but there is no evidence that she took any steps as administrator to demand or request the return of the motorhome prior to July 2021 or to “call in” the estate property under s 27 of the Administration Act.

[39] IAG submits that Ms Shaw eventually made demand for the return of the motorhome in July 2021 (five months after commencing proceedings against IAG) through the letters from her lawyer to Mr Norris’ sons on 29 July 2021.

[40] IAG accepts that this was a valid exercise of Ms Shaw’s powers as administrator under s 27 of the Administration Act and that an outright refusal by Mr Norris’ sons to deliver the motorhome could (depending on the full circumstances) then amount to a “loss” of the motorhome by the estate. But the difficulty for Ms Shaw’s claim is that the policy had expired on 5 July 2018 and had not been renewed. A “loss” arising in July or August 2021 was not, therefore, an insured loss.

[41] IAG submits that a further difficulty for Ms Shaw’s case is that the response to her lawyer’s letter of 29 July 2021 did not indicate an intention to deprive the estate of the motorhome. The lawyer for Mr Norris’ sons made clear in his letter of 26 August 2021 that the motorhome was “securely held by my client for the benefit of the estate and the ultimate determination of the party’s respective claims.” The letter

went on to propose a basis on which the motorhome could be returned to Ms Shaw, which was rejected in the reply from her lawyers on 31 August 2021.

[42] The lawyer for Mr Norris’ sons then wrote, on 20 April 2022, to advise of instructions that the motorhome was “available to be collected by Ms Shaw at her earliest convenience”. IAG submits that the Judge fell into error when he found in the decision that there remained an ongoing refusal by Mr Norris’ sons to return the motorhome. This finding is directly contrary to the position of Mr Mark Norris as stated in his lawyer’s letter of 20 April 2022.

[43] IAG submits that it appears that the Judge was influenced (at least in part) to dismiss the evidence that the motorhome was available for collection by the fact that he reserved leave for counsel to file memoranda to advise if the motorhome was returned and that he did not receive any such memorandum. A memorandum was in fact filed by counsel for the appellant on 27 May 2022 providing the relevant updating evidence, but it appears that it did not reach the Judge before delivery of the judgment on 9 June 2022.

[44] By way of conclusion, IAG submits that the Judge erred in fact and law by finding there was no question to be tried as to whether Mr Norris’ estate had suffered a “loss” of the motorhome prior to the expiry of the insurance policy on 5 July 2018. Prior to that date, Ms Shaw had not been appointed administrator of the estate and no demand or request had been made for its return. It was held by Mr Norris’ sons on behalf of the estate and in the genuine belief that Mr Mark Norris was entitled to it in accordance with the handwritten letter of 3 September 2012.

[45] The motorhome was not therefore “irrecoverable in all probability” or “finally put beyond the estate’s reach” within the period of insurance and there was, therefore, no “loss” of the motorhome within the meaning of the policy.

[46] IAG submits that events subsequent to the expiry of the policy are irrelevant to the issue of loss within the policy period. In any event, Ms Shaw was appointed as administrator in August 2019, but did not call for possession of the motorhome until 29 July 2021. In response, the lawyer for Mr Norris’ sons confirmed that they held

the motorhome securely for the benefit of the estate and set out the grounds for their belief that Mr Mark Norris was beneficially entitled to it. By the time of the hearing on 22 April 2022, Mr Mark Norris had (through his lawyer) confirmed that the motorhome was available for collection by Ms Shaw.

[47] IAG submits that Ms Shaw did not therefore satisfy the test for summary judgment by establishing that there was no serious question to be tried as to whether the estate had suffered a “loss” of the motorhome within the policy period. IAG, therefore, seeks an order setting aside the decision and substituting it with a decision dismissing Ms Shaw’s summary judgment application.

Discussion

[48] Was there a loss within the relevant period of insurance? Given the summary judgment context, the issue is whether there was a “real question to be tried” as to whether there had been such loss.

[49] The period of insurance expired on 5 July 2018. In my view, there had been a sudden physical loss of the motorhome in terms of the policy on 21 January 2018 (within the relevant period of insurance) when Mr Norris’ sons took physical adverse possession of the motorhome. They arrived at the place where the motorhome was stored with bolt cutters and a locksmith intent on physically taking the motorhome away.

[50] When Police contacted Mr Stephen Norris following the seizure of the motorhome, he explained that his brother, Mr Mark Norris, “retrieved it from Podges Place because he believed he had a legal right to it.” He did not, at that time, explain that they held the motorhome for their father’s estate. They were, for all intents and purposes, asserting an absolute right to the motorhome.

[51] I apprehend that it was only after consulting lawyers in Wellington in 2021 that their position changed. The lawyers instructed by Mr Norris’ sons, Good & Law, wrote to Rice Craig, Ms Shaw’s lawyers, by letter dated 26 August 2021:

21. Stanley’s sons were unaware that Karen had stopped living in the Isuzu until they located it on 16 January 2018 following Stanley’s funeral.

Despite Karen’s assertions to the contrary, there is nothing untoward about Stanley’s sons obtaining possession of the Isuzu. Stanley’s intentions regarding the Isuzu are evident in his will [hand written letter of 3 September 2012] and Karen had readily acknowledged the family’s entitlement to it.

22. Stanley’s sons also held concerns about Karen’s intentions vis a vis the Isuzu and possible detriment to the estate if the bus remained in her possession (concerns born out by Karen’s subsequent conduct) they therefore took steps to immediately secure the Isuzu for the benefit of Stanley’s estate.

23. Contrary to Karen’s claims against IAG, therefore, the Isuzu has never been lost to the estate. It remains securely held by my clients for the benefit of the estate and the ultimate determination of the parties’ respective claims.

[52] I infer that Mr Norris’ sons would have received advice at that time from their lawyer that the handwritten letter dated 3 September 2012 from Mr Norris to his son, Mr Mark Norris, was not a valid will and how it might be validated by the High Court under the Wills Act. No application to validate it as a will was, however, subsequently made.

[53] Mr Mark Norris later instructed lawyers in Levin, C S Law. His position changed once again, and he indicated a willingness to return the motorhome to Ms Shaw. C S Law wrote to Rice Craig by letter dated 20 April 2022:

Mr Norris has seriously contemplated the steps he could take to protect his interests, including applying to validate the will, making an FPA [Family Protection Act] claim, or applying for an independent administrator to be appointed.

However, any of those steps will only bring Mr Norris into conflict with Ms Shaw which he has no interest in. Mr Norris also does not want IAG to have to defend Ms Shaw’s application which has already created a significant risk to the estate.

Mr Norris has therefore instructed us that he has arranged for the motorhome to be made available to be collected by Ms Shaw at her earliest convenience. It was not lost to the estate, and never has been.

[54] I agree that the time at which to assess whether a loss has occurred is at the time the motorhome was taken. The insured at that time was Mr Norris’s estate. No administrator had been appointed. IAG says that the estate had therefore vested in the Crown on an interim basis under s 22 of the Administration Act. It therefore challenges actions taken by Ms Shaw on the basis that she lacked the authority to act for the estate. However, s 24 of the Administration Act provides that the title of administrator shall relate back to and be deemed to have arisen immediately upon the

death of the deceased person, as if there had been no interval of time between the death and the grant of administration. Ms Shaw was later appointed administrator, so the actions taken by her before her appointment are statutorily deemed to have been taken by her as administrator of Mr Norris’s estate.

[55] IAG appears to have denied the claim on the basis that legal ownership of the motorhome was uncertain. It was, however, not uncertain. The motorhome was always owned by Mr Norris’s estate. The handwritten letter of 3 September 2012 was not a valid will, yet it was interpreted by IAG as evidence that Mr Norris had “gifted” the motorhome to Mr Mark Norris. IAG stated in the letter to Ms Shaw dated 2 July 2020:

As the ownership of the vehicle is uncertain, it cannot be established that you or the Estate have necessarily suffered a ‘loss’ for the policy to cover.

IAG has therefore fallen into error in assessing the claim because legal ownership of the motorhome was never in doubt.

[56] IAG further stated in the letter to Ms Shaw dated 2 July 2020:

I acknowledge that the letters of administration grant you the right to Stanley’s estate, unfortunately, it is not clear whether the vehicle is part of the estate, due to the note from 2012.

It was however always clear that the motorhome was part of Mr Norris’s estate. The estate legally owned the motorhome.

[57] A similar approach was taken by the Ombudsman in rejecting Ms Shaw’s complaint. The Ombudsman stated:

[The dispute about ownership] means we cannot decide that Mr Norris’ son, Mr Mark Norris, had no legal right to the camper.

He, however, had no legal right to retain the motorhome. After proceedings were issued by Ms Shaw, Mr Mark Norris’ lawyers acknowledged that he was holding the motorhome for the benefit of the estate and later still that he would make the motorhome available for collection by Ms Shaw.

[58] Furthermore, it appears that IAG also relied on lack of Police action to deny the claim. One of the reasons cited by IAG in the letter of 10 September 2019 for not accepting Ms Shaw’s claim was the lack of Police charges against any of Mr Norris’ sons. However, Police charges are not a prerequisite to establishing loss. Ms Shaw made a prompt complaint to the Police, telling them that the motorhome was taken by the deceased’s sons without her knowledge and consent. Once she was granted letters of administration to the estate, Ms Shaw then invited the Police to either recover the motorhome or lay charges. The Police also listed the motorhome as stolen, although they later advised that they considered the dispute a civil matter until ownership had been established.

[59] Counsel for IAG has questioned Ms Shaw’s status before she was granted letters of administration. Section 218(1) of the Crimes Act 1961 provides, however, that for the purposes of Part 10 of the Crimes Act, a person is to be regarded as the owner of any property that is stolen if, at the time of the theft, that person had possession or control of the property or any interest in the property or the right to take possession or control of the property. Ms Shaw clearly had possession and control of the motorhome.

[60] Furthermore, s 218(2) of the Crimes Act also provides that an owner of any property may be guilty of theft against another owner of that property.

[61] It seems that the Police chose not to prosecute because as prosecutor they would need to prove that the Norris brothers took the motorhome without claim of right, which is an essential element of the offence of theft in s 219 of the Crimes Act. A claim of right means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed. An honest belief, however wrongheaded, that a person had a legal right to take or retain possession of a particular item of property will be sufficient.

[62] On the first and major submission advanced by the appellant, I am therefore of the view that there was indeed a loss of the motorhome within the period of insurance which expired on 5 July 2018.

[63] On the second and related submission advanced by the appellant, the fact that Ms Shaw was not appointed administrator of the estate until after the insurance policy had expired is not material not only because of s 24 of the Administration Act, but also because Mr Norris’ estate was the legal owner of the motorhome although for the purposes of Part 10 of the Crimes Act, Ms Shaw was also an owner of the property because she had possession and control of the motorhome.

[64] On the third submission advanced by the appellant, I agree that events after the expiry of the policy period are strictly irrelevant. I note, however, that it was three and a half years after the motorhome was taken that the solicitor acting for the Norris brothers acknowledged for the first time that the motorhome was being “held” by them on behalf of their father’s estate, the legal owner of the property.

[65] Mr Steven Norris states that:

Following the retrieval of the motorhome, the New Zealand Police contacted me regarding the motorhome. I explained that Mark retrieved it from Podges Place because he believed he had a legal right to it.

It can be inferred he meant to the exclusion of Ms Shaw and their father’s estate. What is clear is that the motorhome was hidden away. AIG advised Ms Shaw by letter dated 2 July 2020, “I must stress, however, that Lumley was unable to ascertain the whereabouts of the vehicle and Mark [Norris] refused to disclose this information”. A private investigator retained by Ms Shaw spoke to Mr Brian Norris on 10 August 2021. He states in an affidavit that:

Mr Brian Norris said that they would not hand it over (referring to himself and his brothers) until “someone was arrested or the Police knocked on the door.” His demeanour at the time clearly confirmed that there was no intention now or in the future for the motorhome to be surrendered to the administrator [of Mr Norris’ estate, Ms Shaw].

[66] As to the fourth and final submission advanced by the appellant, I agree with the Judge that there was no real question to be tried as to whether there was “loss” under the policy within the policy period. Ms Shaw had possession and control of the motorhome at the time it was abruptly taken from storage without her knowledge or approval. She was an owner of it in terms of Part 10 of the Crimes Act. She also later because the administrator of Mr Norris’ estate, the legal owner of the motorhome.

Police charges were not necessary to establish loss. The Norris brothers intended to retain the motorhome against any other claimants for at least three and a half years until receipt of legal advice. No application was made to validate Mr Norris’ handwritten letter dated 3 September 2012 as his will. It remains of no legal effect with regard to the claim under the policy.

[67] Counsel for the appellant accepts that it was a valid exercise of Ms Shaw’s powers as administrator to demand the return of the motorhome and that an outright refusal by the Norris brothers to deliver the property could (depending on the full circumstances) then amount to a loss of the motorhome by the estate. But a demand by the administrator for return of the motorhome is not a prerequisite for a loss to be established. Ms Shaw was not appointed administrator until 30 August 2019, 19 months after the motorhome was taken. She was unable to make a demand as administrator within the policy period. Nonetheless, possession and control of the motorhome had been taken from her and she was unable to regain its possession within the policy period. She had no knowledge of its whereabouts and the Norris brothers intended to keep her out of its possession and control.

Result

[68] The appeal is dismissed. Costs are payable to the respondent on a 2B basis.

Woolford J