The application below for leave to appeal to the Judicial Committee of the Privy Council was filed with the New Zealand Court of Appeal on 23 April 2014.is step is a prerequisite before making an application directly to the Privy Council
It concerns the case involving my late mothers estate which resulted in me becoming the first person in 300 years to be bankrupted by the executor of that estate. For the complete application click here!
IN THE COURT OF
APPEAL OF NEW ZEALAND
WELLINGTON
REGISTRY
CA 193/03
CIV 2003-485-893
CP No. 47/ 03
P No 350/03
UNDER the Supreme Court Act 2003
IN THE MATTER of the will of JESSE JOY CRESER
BETWEEN RICHARD JOHN CRESER
Plaintiff/
Appellant
AND JANINE MICHELLE CRESER
( in her personal capacity as executor de son
tort)
First
Defendant/ Respondent
AND JANINE MICHELLE CRESER and MARION NGAIRE CRESER
(as trustees
of the estate of Jesse Joy Creser)
Second
Defendants/Respondents
APPLICATION FOR LEAVE TO APPEAL TO THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Dated at Wellington this 17th day of April
2014
Filed by the applicant in person-
Richard John Creser
4 Rothwell Street
Titahi Bay
Poruirua 5022
Email-jcreser@gmail.com
Jurisdiction
1.
This
application for leave to appeal is made in reliance upon the Supreme Court Act
2003.(hereinafter the “Act”)
2.
The
Act contains transitional provisions in respect of decisions of the Court of
Appeal made before 1 January 2004. The relevant
provision is section 50 subsection1(a)
of the Act which provides that the Privy Council may determine appeals
in certain existing proceedings as follows- The Privy Council may
hear and determine, or continue to hear and determine, -
a.
an appeal against a final judgment of the Court of Appeal made
before 1 January 2004, or made after 31 December 2003 in a proceeding whose
hearing was completed before 1 January 2004, where
i.
the matter in dispute on the appeal amounts to or is of the value
of $5,000 or upwards; or
ii.
the appeal involves, directly or indirectly, some claim or
question to or respecting property or some civil right amounting to or of the
value of $5,000 or upwards;
3.
This
application seeks leave to appeal out of time upon the grounds there was a
mistake of law thus in the interests of justice to grant leave. The respondents
remain the trustees of a mutual estate; consequently litigation resulting from
the appeal decision has been ongoing since the date of the decision in 2003.
Decision
Under Appeal.
4.
The
judgment under appeal, CA193/03 dated 8 October 2003, is attached and marked as
“A”.
5.
The
Court refused to allow the appellant to appeal an order to pay an award of
costs of $5,843.50 arising from litigation over the will of the parties mother,
Jesse Joy Creser( hereinafter the “testatrix”). A copy of the will is attached
and marked as “B”
6.
The
costs were awarded against the appellant in the judgment of Gendall J dated 2
September 2003, CIV 2003-485-893. This decision is attached and marked as “C”.
7.
Part
of the above decision struck out proceedings in CP 47/03, which amongst other things
sought financial disclosure from the respondent under the Administration Act
1969. The application for pre-commencement disclosure is attached and marked as
“D”.
8.
In
paragraph (5) of the judgment the Court of Appeal referred to the decision not
to allow the appeal over the lack of disclosure and says- “the applicant advised that he
still wishes to have leave to appeal against the decision of Gendall J on the
other matters dealt with including costs. We are satisfied that, apart from the
costs order, those matters can be pursued in the High Court once an application
is made for probate in the solemn form. They relate to disclosure and temporary
administration.”
9.
The
appellant also seeks leave to appeal the above part of decision which refused
to remedy the lack of disclosure and consider the overwhelming evidence of the respondent’s
inherent bias.
10. Hence, the matters for which leave is
now sought to appeal have been recognized by the court but have yet to be dealt
with because of the respondent’s decision to make appellant to bankrupt over
the costs.
Background
11. In March 2003, the appellant applied
to the High Court at Wellington for orders under the administration act
including pre-trial disclosure of financial transactions involving the
respondent’s conduct while exercising an Enduring Power of Attorney over the
affairs of Jesse Joy Creser. The power of attorney is attached and marked as “E”
12. Disclosure was sought after evidence
was produced to the Court that the respondent had agreed with a contractor to
inflate an account while exercising that power of attorney.
13. This evidence resulted from a search
of a rubbish bag from the testatrix’s address at 6 Caroline St Wellington which
contained a note indicating that a bill was inflated by $1000, with the consent
of the respondent.
14. The note authored by contractor Ross
Mainland, stated- “Janine I have
padded the bill by $1000 of which you paid me $200 (signed) Ross”.
15. The respondent initially claimed the account
represented a transaction between herself and the second respondent, co-executor
Marion Creser, who she claimed was aware the bill had been inflated and that
the account was made out to her.
16. This evidence of financial
mismanagement was before the Appeal Court and obliquely referred to in
paragraph 7 of the decision -, “ After hearing the parties we consider the
executors are entitled to costs but, because of the matters raised by the
applicant, we fix costs lower than would ordinarily apply of $2000.”
17. Some months after the hearing on 6
October 2003, new evidence was discovered proving the account did not involve a
transaction between the respondent and her co-executor, but was in fact made
out to the donor of the power of attorney, Jesse Joy Creser, four months before
she passed away. The 4 November 2002 account
with the note referring to the bill “padded” by Mr Ross Mainland is attached and marked as “F”
18. The factual matters referred to in
paragraphs 11 -17 herein are supported by the affidavit of Richard John Creser
dated 13 April 2014 attached hereto and marked as “G”
The Costs/Bankruptcy
19. The decision of the Court to reject
the appeal and award further costs of $2000 enabled the respondent to institute
bankruptcy proceedings against the appellant over the accrued costs of
$7,843.50.
20. The respondent claimed by her
solicitor that under the terms of the will the appellant was merely a
discretionary beneficiary of a trust yet to be created, thus not entitled to
rely upon the executor’s ability to retain funds owed to the estate for court
costs.
21. The resulting bankruptcy enabled the
respondents to avoid the intent/effect of the court decision to requiring the respondents
to defend the application for solemn probate. Notably, the effect of this
action also rendered the remedy for disclosure and impartial administration
contemplated by the court decision nugatory.
.
22. At the time of the proceedings, the
appellant was an impecunious solo parent with no means to pay the respondents
court costs. He was however a beneficiary of a trust which had the power if it
so wished to pay the costs as they arose from the shared income account.
23. In any case, the respondents cost had
already been paid by the estate, and the solicitors records confirms that
Johnston Lawrence & Co had collected the costs by taking the funds by
deduction from the estate’s income account under their control.
24. The High Court subsequently rejected
the appellant’s submissions that the willingness of a trustee to bankrupt a
legatee was evidence that the first respondent was clearly biased/hostile
towards the appellant and should be replaced.
25. The appellant claims the rules of equity
provide that costs should have been reserved by his Honour Justice Gendall and
paid for upon settlement of the mutual property held by the respondent on the
appellant’s behalf.
26. The respondents owed the appellant a
duty of care imposed by the protective trust created by the will to protect the
appellant from the effects of bankruptcy.
27. Instead, the respondents authorised
the estates lawyers to effectively sue themselves to recover a relatively small
debt. Approximately $250,000 was taken from the corpus of the estate to cover
the respondent’s costs and another $150,000 taken by the Official Assignee out
of the applicant’s share of the estate.
28. The legal test for the reasonableness
of the respondent’s actions is to compare them with those the testatrix would
have taken in the same circumstances. Given that the testatrix had changed her
will after being informed that the appellant had substantial debts and
creditors it’s highly unlikely she would have approved of the bankruptcy.
29. The respondents willfully ignored the
testatrix’s wishes and recklessly exposed the appellant’s inheritance the
bankruptcy process, with the possible result that the appellant would lose
everything the testatrix had trusted would be passed onto her grandchildren.
30. At all material times, the respondents
were secured creditors with the right to set-off or retain the mutual assets of
the estate. The Appeal Court decision confirms the respondents acknowledged
possessing this security to offset costs by ordering a lien against the appellant’s
share of the estate to cover the cost of solemn probate.
The
Estate
31. On 11 May 2006 a decision was issued
in the High Court at Wellington in a Family Protection Act 1955 proceeding
commenced by the appellant’s brother, Peter David Creser. The judgment of
Miller J in CIV 2005-485-2157 is attached and marked as “H”.
32. The appellant’s claim on the estate
was represented by the Official Assignee and the appellant played no part in
the proceedings, this allowed the respondents to make various unchallenged
allegations including one that the appellant was a vexatious litigant hell bent
on dissipating the estate.
33. However, the above decision overturned
the will and determined that the testatrix had breached her moral duty to the appellant
and awarded him an equal third share in the estate, critically in paragraph (52),
the breach was to be determined at the date of the will.
34. The respondents also lost their
application to vary the will to allow them to sell a property held in trust, as
did the solicitors acting for the grandchildren.
35. In stark contrast to the manifestly
unjust penalty imposed upon the appellant over the costs of losing an
application, all the costs of those who failed in the High Court were met by
the estate, including those of the executors whose own application challenged the will.
36. This decision confirms in paragraph 52
of “H”, the respondents as executors legally
held the appellants outright third share, which included income from rental
properties from the date of the will.
37. The decision confirms that the
testatrix breached her moral duty to the appellant. That moral duty was
breached when the testatrix changed her will from an outright third share
38. At paragraph 29 of the decision under the heading- Mrs Creser’s reasons for creating a protective trust -Justice
Miller noted that “
“In her affidavit Ms Stevenson explains that
Mrs Creser instructed her that John had substantial debts her initial
instructions had been that she wished to leave him and his two sisters equal
shares of the estate, but in November 2001 she expressed concern that leaving
capital to John would benefit only his creditors. She accordingly decided to
leave his portion of her estate in trust so that the capital would be preserved
as far as possible, for his children. She also instructed that she wanted
John’s portion to be held by an independent trustee rather than her daughters,
so that there was no opportunity for conflict between John and her daughters as
executors of the estate.”
39. The result of this decision was
described by the Official Assignee as being almost identical to the outcome sought
by the appellant in the original application, the only difference being that no
inquiry was made, as contemplated by the original application, to determine
whether or not the testatrix had been unduly influenced by the respondents in the
breach of her moral duty.
40. Evidence confirming the testatrix had
been misled over the appellants indebtedness is provided by the bankruptcy
itself with the first respondent listed as the only creditor pursuing his share
of the estate.
Grounds
for Appeal
41. The costs award arose from court
procedure contrary to the rules of fair play and natural justice that require
transparency to enforce a fiduciary relationship. The bankruptcy claims arising
from the costs award were excessively punitive, unlawful and unsupported by a single
equitable precedent.
42. This produced an anomalous result,
with the appellant becoming the first person in 300 years to be bankrupted by
the executor of a mutual estate! Further appeal in this jurisdiction has been
halted by the Court of Appeal demanding significant security for costs from an
impecunious party to proceedings.
43. Consequently, the appellant claims an
inalienable right to be subject to the administration of justice according to
the rule of law under chapter 29 of the Magna Carta 1297 –
No freeman shall be taken or imprisoned, or be disseised of his
freehold, or liberties, or free customs, or be outlawed, or exiled, or any
other wise destroyed; nor will we not pass upon him, nor condemn him,1 but by lawful judgment of his peers,
or by the law of the land. We will sell to no man, we will not deny or defer to
any man either justice or right.”
44. The appellant was unrepresented and
thus unfairly penalised by not receiving a reciprocal award of costs for his successful
part of the application which required the respondent to defend an application
for solemn probate.
45. The costs were legitimately incurred
by the beneficiary of an estate seeking to enforce a natural duty of a trustee
to disclose sufficient financial information to enforce a trust. The cost
occasioned by a breach of trust or neglect of duty ought to fall upon the
trustee.
46. As far as disclosure under English law
is concerned, the general principal was stated in O’Rourke v Darbishire [1920] AC581-
i. “The beneficiary is entitled to see all trust documents because they are
trust documents and he is a beneficiary. They are in this sense his own. Action
or no action, he is entitled to access to them. This has nothing to do with
discovery. The right to discovery is the right to someone else’s documents. The
proprietary right is a right to access documents which are your own.”
47. The trustees ability to bring
proceedings over the costs before probate was also doubtful and is referred to
at page 462, s19.2 of Nevill’s Law of Trusts, Wills and Administration (9th
ed) which describes the Nature of Office ( abridged)
ii. For, instance, the executor can
commence an action, although probate must be obtained before the date of
hearing. Re: Masonic and General Life Assurance Co.(1885)32ChD 373.
iii. In fact the executor can do anything
that could be done after probate, up to the point where someone with whom he or
she is dealing requires proof of title. Then he or she must obtain probate.
Thus, if a debtor refuses to pay his or her debt to an executor acting without
a grant of probate, The Court will stay proceedings until a grant is obtained. Re:
Tarr v Commercial Bank of Sydney (1884) 12 QBD 294.
48. There is a large body of well-settled
equitable precedent in relation to the power to set-off and the development of
law in this field arising from the need to avoid unnecessary proceedings. The trustee’s
right to set off is referred to in Equity & Trusts in New Zealand ISBN
0-86472-354-7 at page 154.-
"A trustee may usually set off money due to him or her from the
trust estate against money owed to the trust estate by him or her for example
in McEwan v Crombie (1883)25 Ch D 175 there were two trustees, one of
whom was bankrupt. The bankrupt’s estate owed money to the trust. The trust
estate owed money to them both. The amount due to the bankrupt was set off
against the sum due from the estate. However where a trustee has two trust
funds for the one beneficiary and the beneficiary owes the money to one fund,
the trustee cannot refuse to pay over the other fund. In re Bruce [1908] 2 Ch
682 (CA).”
49. New Zealand statute law provides for
the set-off of mutual debts. The Set-Off Act (Insolvent Debtors Protection
Acts) of 1729 & 1735 are still in force by virtue of the Imperial Laws
Application Act as follows-
“Where there are mutual debts between the plaintiff
and defendant, or if either party sue or be sued as executor or administrator
where there are mutual debts between the testator or intestate and either
party, one debt may be set against the other, and such matter may be given in
evidence upon the general issue, or pleading in bar, as the nature of the case
shall require, so as at the time of his pleading the general issue, where any
such debt of the plaintiff, his testator or intestate, is intended to be
insisted on in evidence, notice shall be given of the particular sum or debt so
intended to be insisted on, and upon what account it became due, or otherwise
such matter shall not be allowed in evidence upon such general issue.”
50. This appellant repeats paragraphs 41-49 herein and,
claims the respondents should be responsible for costs occasioned by their own
misconduct, thus it was a mistake in law to award costs against the beneficiary
for seeking the performance of a natural duty of a trustee to disclose the
estates financial records.
Public
Interest
51. This appeal is of public interest, which can be
defined as anything affecting the rights, health or finance of the public at
large.
52. The public at large have a right to expect that the
legal obligations of persons with fiduciary obligations are met with the
highest standard of care, which can only occur when these obligations are properly
enforced by the courts.
53. It is important that freedom of access
to the Courts should be preserved and that the costs of seeking justice are not
effectively limiting access to justice by imposing fees that are unaffordable
for many. Please refer to - (Williams
v Spautz (1992) 174 CLR 509 at 519; 107 ALR 635
per Mason CJ. “The Court must ensure that its processes are used fairly as between the
parties to the litigation and that the Court must avoid the erosion of public
confidence through concern that its processes may lend themselves to oppression
and injustice. There have been identified as aspects of abuse of process first,
oppression and unfairness to the other party to the litigation and, secondly,
that the matter complained of will bring the administration of justice into
disrepute”(Rogers v R (1994) 181 CLR 251 at 256; 123 ALR 417
per Mason CJ; at 286 per McHugh J; see also Hunter v Chief Constable of
West Midlands Police [1982] AC 529 at 536; [1981] 3 All ER 727 per Lord
Diplock and Walton v Gardiner
at 393).”
54. In this case
the courts have encouraged, and consented to what is a criminal breach of
trust. The respondents were responsible for the administration of a trust to
protect the appellant’s estate from bankruptcy but used a mutual fund to promote
an action representing the antithesis of the testatrix’s wishes.
55. Physical and financial abuse of the elderly by
family members is of growing concern in New Zealand and the public at large is entitled to be
assured that persons acting as fiduciaries for the elderly are required to
maintain unimpeachable levels of integrity.
56. This case sets a particularly odious precedent by
encouraging the use of common law debt recovery proceedings to override entrenched
statutes and equitable maxims, which would otherwise protect estates from being
mismanaged by hostile trustees.-“Where
equity and the common law conflict-equity prevails”-
57. The statutes of Set-Off 1729-34 are meant to prevent
a multiplicity of legal cases arising from a dispute over duty of an executor
to retain funds from a debt owed to a mutual estate. The public at large are
ultimately responsible for funding the ongoing costs of seeking to this dispute
through the New Zealand Courts. A
definitive ruling on the application and effect of this statute is sought to
prevent all parties, including the public at large, from suffering further
distress and financial loss.
58. One
exception to the paramount emphasis on the public importance of a proposed
appeal over its merits occurs in applications for leave to appeal an order as to
costs. There are few authorities on the test applied for such applications
(presumably because they are rare) thus the grounds for leave are somewhat
sketchy. However, those authorities that do exist suggest that the merits have
more weight than in any other kind of leave application.
59. This matter raises several significant questions
relating to the way New Zealand courts have interpreted equitable relationships
and represents a significant departure from the rationale adopted in the United
Kingdom over the liability for court costs in family proceedings. The
merits of this case and overall interests of administrative justice in New
Zealand will be best served by referral to the Judicial Committee of the Privy
Council.
Relief sought
a.
An
order granting leave to the Privy Council to appeal an order of costs made by
the Court of Appeal in CA 193/03 and CIV 2003-485-893
b.
An
order granting leave to appeal the decision not to order the respondents to
disclose the estates financial records.
c.
An
order granting leave to appeal the decision not to place the estate under
temporary administration.
DATED this 17th day
of April 2014
__________________________
richard john creser
Appellant
TO: The Registrar of the Court of Appeal at Wellington
The Registrar of the
Judicial Committee
AND
TO: The
respondents
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