IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-441-60
[2019] NZHC 2687	

UNDER	the Administration Act 1969	
IN THE MATTER OF	the Estate of Ngaire Jean Hayward and the
Estate of David Hayward (also known as Dai Hayward)	
BETWEEN	MATTHEW JOHN FRENCH AND SARAH ELIZABETH FRENCH
Applicants	
AND	DAVID MORGAN HAYWARD
Respondent	

Hearing:	On the papers	
Counsel:	J M Morrison for Applicants	
Judgment:	21 October 2019	

JUDGMENT OF CLARK J

Introduction

[1]	The applicants seek an order under s 21 of the Administration Act 1969 for removal of their uncle, Mr David Hayward, as administrator of their grandparents’ estates on the basis he has been absent from New Zealand for over 12 months without leaving  a  lawful   attorney.1   The   applicants   also   seek   an   order   appointing Mr Alan James Laurenson as administrator of their grandparents’ respective estates.

[2]	The applicants have also applied, without notice, to commence the proceeding by way of originating application and they seek directions as to service.

1	Administration Act 1969, s 21(1).

FRENCH AND FRENCH v HAYWARD [2019] NZHC 2687 [21 October 2019]

[3]	Mr Matthew Gilkison, a solicitor, filed an affidavit in support of the application under the Administration Act. Mr Gilkison acted as solicitor on the applications for probate in relation to each of the estates in respect of which this application is made. Mr Gilkison explains that Mrs Ngaire Jean Hayward was married to Mr  David “Dai” Hayward. The couple had two children, also named David Hayward and Ngaire Hayward. To avoid confusion I shall refer to Mr and Mrs Hayward senior by their respective surnames and their children as “Ngaire” and “David”.

[4]	Mrs Hayward died in June 2009. Her husband died one month later. Under both wills David was appointed as executor. David is not resident in New Zealand but when he travelled to New Zealand for his father’s funeral he gave instructions  to  Mr Gilkison to obtain probate in relation to both wills. To the best of Mr Gilkison’s knowledge David has not been present in New Zealand for at least 12 months.

[5]	Probate of Mr Hayward’s will was obtained  on  15  April  2010,  and  of  Mrs Hayward’s will, on 6 May 2010. Under her will, Mrs Hayward’s residuary estate passed to her husband. Under Mr Hayward’s will, 50 per cent of the residuary is to pass to David and the remainder to be divided equally between Ngaire’s two children, who are the present applicants.

[6]	Mr Gilkison deposes to execution of the specific bequests but the residue remains to be distributed. Mr Gilkison has been asking David for instructions since 2016. Without instructions, Mr Gilkison is unable to distribute the beneficiaries’ residuary entitlement. Between March 2016 and June 2019 Mr Gilkison sent five emails to David seeking instructions. The emails were sent to an address from which David had responded until 2015. A subsequent email was sent to an email address provided by one of David’s daughters. Mr Gilkison says none of his emails have bounced back. There has simply been no reply to his correspondence. The respondent’s inactivity means the estates are unable to be distributed and wound up unless he is replaced.

Discussion

[7]	Rule 19.2 of the High Court Rules 2016 lists the enactments pursuant to which applications made to the High Court must be made by originating application. The

Administration Act is not one of the enactments listed. But the Court may permit proceedings to be commenced by originating application if it is in the interests of justice to do so.2

[8]	Originating applications are generally appropriate where the application is straightforward without the need for particularised pleadings or interlocutory steps to determine the issues.3 It will generally be unsuitable to commence proceedings by way of originating application where there are multiple parties, cross-claims or wide- ranging factual issues.4

[9]	Given David is unable to be contacted, the s 21 application is likely to be unopposed as no other interests are affected by the application. It is appropriate the proceedings are commenced by way of originating application to permit their speedy and inexpensive determination.

Result

[10]	Permission is granted to commence the proceeding by way of originating application.

[11]	Consistent with the direction sought, the originating application is required to be served only on the respondent.

Karen Clark J

Solicitors:
Greig Gallagher & Co, Wellington for Applicants

2	High Court Rules 2016, r 19.5.
3	Hong Kong and Shanghai Banking Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [22]– [26], per Asher J.
4	Solar Bright Ltd v Martin [2019] NZHC 300 at [17].