Estate of Harvey [2023] NZHC 3526 (5 December 2023)

Last Updated: 15 December 2023

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

CIV-2023-404-1454 [2023] NZHC 3526

IN THE MATTER	of the Wills Act 2007
AND
IN THE MATTER	of the Estate of GAYLENE MARGARET
	HARVEY
AND
IN THE MATTER	of an application by DAREL-ANNE
	CARPENTER

Hearing:	29 November 2023
Appearances:	A R Gilchrist for Applicant G T B Coleman for Respondent
Judgment:	5 December 2023

JUDGMENT OF LA HOOD J

This judgment was delivered by me on 5 December 2023 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

David Rice & Associates, Papakura Lance & Lawson, Rotorua

Re Estate of GAYLENE MARGARET HARVEY [2023] NZHC 3526 [5 December 2023]

• [1] This matter came before me as Duty Judge on 29 November 2023 for a one-hour interlocutory hearing.

• [2] The applications to be determined are:

(a) The applicant’s application to set aside the interlocutory application by Aimee Christie (as Litigation Guardian for Maitland Candy) to strike out the declaration sought by the applicant regarding whether Mr Candy was in a de facto relationship with Gaylene Harvey at the time of her death (“the de facto relationship application”).

(b) The applicant’s application to set aside Ms Christie’s appearance under protest to jurisdiction, and for leave to file the de facto relationship application by way of originating application.

Background

• [3] Ms Harvey died on 26 January 2023 at the age of 57. She had no valid will.

• [4] These proceedings concern an application by her sister, Darel-Anne Carpenter, under s 14 of the Wills Act 2007, for a transcript of a video recorded on 25 September 2022 to be validated as Ms Harvey’s will (“the s 14 application”).

• [5] Ms Christie, as Litigation Guardian for Mr Candy, has opposed the s 14 application. Mr Candy was served with these proceedings as he is an interested party, having been in a de facto relationship with Ms Harvey. At an early stage in the proceedings, it became apparent that the parties disagreed about whether Mr Candy and Ms Harvey were in a de facto relationship at the time of Ms Harvey's death.

• [6] On 22 September 2023 the applicant filed an amended originating application, which included an application for a declaration as to whether Mr Candy and Ms Harvey were in a de facto relationship at the time of Ms Harvey's death. The declaration is sought under the Declaratory Judgments Act 1908.

Issues to be determined

• [7] The essential issues to be determined are:

(a) Should leave be granted to file the de facto relationship application by way of originating application, or should it be left for separate proceedings.

(b) If the de facto relationship application is to form part of these proceedings, should the s 14 application and de facto relationship application be heard together, or should the s 14 application be heard first.

Assessment of the competing arguments

• [8] For the applicant, Mr Gilchrist relies on the objective of the High Court Rules 2016 to secure the just, speedy and inexpensive determination of proceedings and submits that the rules require a focus on substance over form.¹ He accepts that in seeking leave to file the de facto relationship application by way of originating application under pt 19, the applicant is seeking an exemption to the normal procedure for commencing an application under the Declaratory Judgments Act (by way statement of claim under pt 18). He submits, and I accept, it is a matter of irregularity rather than jurisdiction as there is no dispute that the High Court has jurisdiction to grant declaratory relief on the de facto relationship application.

• [9] For Ms Christie, Ms Coleman accepts that it is a question of the Court exercising its discretion to grant leave to commence the proceedings under pt 19 rather than a question of jurisdiction per se.

• [10] Mr Gilchrist submits that the issue is narrow, the application would not benefit from formal pleadings (they would unnecessarily complicate the case), and it is appropriate for the evidence to be adduced by affidavit.

¹ He relies, for example, on rr 1.2 and 1.5 of the High Court Rules 2016.

• [11] Ms Coleman accepts that there would be no benefit in formal pleadings, but submits that there should be particular discovery relating to electronic messages between Ms Harvey and Mr Candy in the months prior to Ms Harvey’s death. Mr Gilchrist accepts that this material would be relevant, but submits it can be provided by affidavit, or through an order for particular discovery.

• [12] Given there is agreement that pleadings are unnecessary and only limited discovery is required, and the fact that both pt 18 and pt 19 require evidence to be given by affidavit,² I consider leave should be granted to commence the de facto relationship application under pt 19. It is consistent with the objective of just, speedy and inexpensive determination of proceedings.

• [13] The more difficult question is whether the s 14 application should be heard together with the de facto relationship application.

• [14] Ms Coleman submits, and I accept, that the s 14 application can be determined without the need to determine the de facto relationship application. If the s 14 application is successful, there will be no need to consider whether Mr Candy and Ms Harvey were in a de facto relationship as there will be no intestacy to which that issue will be relevant.³

• [15] If the s 14 application is successful, Mr Candy could choose to make a claim under the Property (Relationships) Act 1976. However, as Mr Gilchrist accepts, the issue of whether he and Ms Harvey were in a de facto relationship at the time of death would not be relevant to such a claim. Mr Candy could also decide to bring a Family Protection Act 1955 claim against the estate, and at that point whether they were in a de facto relationship would be relevant. However, Ms Christie says she has not decided whether she will make such a claim on Mr Candy’s behalf and cannot do so until the s 14 application is determined.

• [16] Ms Coleman accepts that if the s 14 application fails, Ms Harvey will have died intestate and the de facto relationship application will require determination to

² Unless the Court otherwise directs: High Court Rules, rr 18.15 and 19.13.

³ High Court Rules, r 27.35.

resolve priority for the grant of letters of administration,⁴ and distribution of the estate.⁵

• [17] Ms Coleman submits that requiring the Court to consider both applications together means the parties may waste the Court’s time and their resources to have a matter determined that may never need determination.

• [18] Mr Gilchrist’s response is that, as the issue is narrow, and the evidence and submissions are likely to be relatively short, it is in everyone’s best interests to have these matters resolved at one hearing. He does, however, accept that both the preparation and hearing time required would be approximately doubled by having the applications heard together, with the hearing likely to take two days rather than one.

• [19] Mr Gilchrist did not contest that the outcome of the s 14 application would have the effects described above on the de facto relationship application. In addition to his point about the efficient disposal of the proceedings, he submits that determination of the de facto relationship application will impact on Mr Candy’s standing to make, and the weight to be given to, arguments on the s 14 application.

• [20] I do not find this argument convincing. Whether heard at the same time or later, the de facto relationship application will not have been determined at the point the Court is hearing argument on the s 14 application. Mr Candy has been served with the application as a person interested in the estate and he will be opposing it in that capacity prior to determination of the exact nature of his interest. I do not consider there is a basis to suggest the Court will place different weight on his opposition because it also has before it the undetermined de facto relationship application. Moreover, even if, following a joint hearing, the de facto relationship application were determined against Mr Candy before determination of the s 14 application, the Court could not let that influence its assessment of his arguments in opposition to s 14 application.

⁴ Under r 27.35.

5. Administration Act 1969, s 77. Ms Coleman initially took the point that the current applicant would have no standing to contest that issue in these proceedings, but accepted at the hearing, given Ms Harvey’s mother and sisters’ joint approach to these proceedings, that could be easily procedurally remedied. She did not therefore press this technical point.

Decision

• [21] Balancing the competing interests, I consider the most appropriate way to progress this case is for leave to be granted to have the de facto relationship application commenced by originating application. However, the current uncertainty about whether the de facto relationship application will require determination, and the fact that it will double the preparation and hearing time, means the s 14 application should be determined first at a one-day hearing. A hearing date is available on 18 March 2024 and the parties have confirmed their availability on that date.

• [22] I therefore make the following orders:

(a) The applicant’s application for leave to commence the de facto relationship application by originating application is granted.

(b) The s 14 application is set down for a one-day hearing on 18 March 2024.

(c) The parties are to file a joint memorandum, or separate memoranda if agreement cannot be reached, setting out a timetable for filing any further evidence, submissions, authorities and bundles prior to the hearing on 18 March 2024. The parties should also address whether they consider any directions should be made to progress the de facto relationship application prior to 18 March 2024, and if so what they should be.

(d) In respect of costs of this hearing, my preliminary view is that both parties have had a measure of success and costs should lie where they fall. If the parties disagree, they should file and serve memoranda within five working days of receipt of this decision not exceeding four pages, and memoranda in reply five working days thereafter not exceeding two pages.

La Hood J