Fox v Fox relates to a claim by an executor of the estate of Mrs Fox who required the assistance of the Court to conclude the administration of the estate by selling land and distributing the proceeds of sale according to a will. The executor’s impediment to doing so was that two of the properties were unlawfully occupied due to an un-litigated dispute relating to Mrs Fox’s will. An attempt at dispute resolution had resulted in a draft Deed of Family Arrangement, but this was never executed.
Mr Fox incorrectly sought the assistance of the Court by way of originating application, pursuant to ss 53 and 57 of the Administration Act 1969, as well as under the Court’s inherent jurisdiction. The Court, observing that the correct procedure was an application under Part 13 of the High Court Rules, nevertheless exercised its discretion to treat the application as an application for the recovery of land. It opined that to require the proceedings to be re-filed would cause unnecessary delay and expense to the estate.
Such was the apparent confusion about the form of proceedings that the only authority cited in submissions on behalf of the administrator was Harvey v Beveridge, which concerned a summary judgment application under Part 12 of the High Court Rules (although Part 13 proceedings to recover land may also apply to relevant Part 12 summary judgment proceedings). (Editor’s note – the text of the judgment makes it clear that there were disputes as to some facts and these may have prevented the choice of proceedings under Part 12). The Court did nevertheless approve of the application also being made under inherent jurisdiction, which it considered appropriate in the circumstances.
Orders were made requiring vacant possession of the properties in question. It appears significant that no claim had been made against the estate by the parties in occupation of the properties.
Fox v Fox  NZHC 1021
Harvey v Beveridge  NZCA 72