McGoverin v Wright

[2020] NZHC 2726

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000

[2020] NZHC 2726

UNDER

the Family Protection Act 1955

IN THE MATTER

of the Estate of Kathleen Mary Smith

BETWEEN

JENNIFER HELEN McGOVERIN

Plaintiff

AND

PHILIP GORDON WRIGHT

Defendant

Hearing:	(Determined on the papers)
Counsel:	G L Wilkin for the Plaintiff
Judgment:	16 October 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 16 October 2020 at 11am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 16 October 2020

McGOVERIN v WRIGHT [2020] NZHC 2726 [16 October 2020]

[1]    The plaintiff, Jennifer Helen McGoverin, is intending to bring a proceeding under the Family Protection Act 1955 against the estate of Kathleen Mary Smith. The defendant, Philip Gordon Wright, is the executor of Ms Smith’s estate. Mr Wright is, also in his capacity as executor, named as defendant in a proceeding in this registry under CIV-2020-409-205 (the 205 claim), where the causes of action concern a mutual Wills and an unjust enrichment claim.

[2]    Associate Judge Paulsen, in a Minute of 30 September 2020 in the 205 claim, referred to Mr Wilkin appearing at the telephone conference on 16 September 2020. Mr Wilkin is counsel for Ms McGoverin, the intended plaintiff in the present proceeding. The Judge referred to Mr Wilkin advising the Court of this intended Family Protection Act proceeding. In the context of discussing whether there should be a Judicial Settlement Conference in the 205 claim, the Judge said: “It would be possible for a Judicial Settlement Conference to include Ms McGoverin so all claims affecting the estate are, hopefully, resolved in unison.”

[3]    Mr Wright is based in Tauranga. The 205 claim is in the Christchurch registry. Ms McGoverin seeks to commence her Family Protection Act proceedings in Christchurch in order for the estate proceedings to be dealt with alongside the 205 claim.

[4]    Ms McGoverin, in her Family Protection Act proceedings, does not rely on an affidavit as to where the cause of action arose so as to invoke r 5.1(2) of the High Court Rules 2016, but instead has informally applied under r 5.1(5) of the High Court Rules which provides:

(5)If it appears to a Judge, on application made, that a different registry  of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.

[5]McGechan on Procedure says:1

Rule 5.1(5) assumes that a proceeding has been filed in its proper registry. Transfer on the basis of convenience is not available before the proceeding is commenced: Vine-Tech Contracting Ltd v South River Ltd [2016] NZHC 420 at [16].

[6]    In Vine-Tech Contracting Ltd v South River Ltd, his  Honour  Associate  Judge Osborne (as he then was) said:2

Rule 5.1(5) cannot be applied [to a new proceeding]. The rule assumes that  a proceeding has been filed in its proper registry. It permits transfer thereafter on the basis of convenience to the parties. It is step which may be entertained when the proceeding has been commenced and the convenience of all parties can be considered. It is not available to the plaintiff before the proceeding is commenced.

[7]    Accordingly, r 5.1(5) is not available to permit this Family Protection Act proceeding to be commenced in the Christchurch Registry.

[8]    Given Mr Wright is involved in proceedings in the Christchurch registry, he may well agree it is more convenient for the Family Protection Act proceedings to be commenced in the Christchurch registry. I can certainly see the sense of all estate matters being dealt with together, as did Judge Paulsen.

[9]    Ultimately, the court controls its own procedures. If Mr Wright confirms he has no objection to the Family Protection Act proceeding being commenced in the Christchurch registry, then consent for that will be given. I see no point where there is consent to the proceeding being filed in the Christchurch registry to require the proceeding to be first commenced in Tauranga and then  transferred by consent  to the Christchurch registry.

1      Andrew Beck (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR5.1.18(2)].

2      Vine-Tech Contracting Ltd v South River Ltd [2016] NZHC 420.

[10]   Accordingly, the application pursuant to r 5.1(5) is dismissed.  Assuming   Mr Wright’s consent can be obtained then a further memorandum addressed to me recording his consent should be filed and I will grant consent for the Family Proceedings Act claim to be filed in the Christchurch registry. I will then deal with the application for directions as to service.

Associate Judge Lester

Solicitors:
John K Fraser Law Ltd, Invercargill

Copy to counsel:
G L Wilkin, Pursuit Legal, Invercargill