TIGER ALEXANDER BROWN v PERPETUAL TRUST LIMITED [2022] NZHC 1726

TIGER ALEXANDER BROWN v PERPETUAL TRUST LIMITED [2022] NZHC 1726 [20 July 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-2366[2022] NZHC 1726UNDER Part 18 of the High Court Rules and theinherent jurisdiction of the High Court tosupervise trustsIN THE MATTER OF a breach of trustBETWEEN TIGER ALEXANDER BROWNPlaintiffAND PERPETUAL TRUST LIMITEDas administrator of the Estate ofALEXANDER GAVIN BROWNDefendantHearing: 13 June 2022Appearances: Mark Sandelin for the PlaintiffNL Walker and BHS Walley for the DefendantJudgment: 20 July 2022JUDGMENT OF ASSOCIATE JUDGE C B TAYLORThis judgment was delivered by me on 20 July 2022 at 3:00pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Morris Legal (Georgia Angus/Sally Morris), Auckland, for the PlaintiffRussell McVeagh (NL Walker/BHS Walley), Wellington, for the DefendantCounsel:Mark Sandelin, Mills Lane Chambers, Auckland, for the PlaintiffIntroduction[1] The plaintiff, Tiger Brown, is the son of the deceased Alexander Brown.1 Atthe time of Alexander's death, there were four residential properties (the Properties)in respect of which Alexander had executed declarations of bare trust in favour ofTiger.[2] On Alexander's death, the defendant, Perpetual Trust Ltd (Perpetual) wasappointed as administrator of his estate. Consequently, it is the current trustee of thebare trusts. It has signalled its view that the Properties are held on bare trust for Tigerbut has declined to transfer the Properties to him. Tiger claims against Perpetual fortransfer of the Properties, alleging breach of trust.[3] The relevant background is that Alexander's widow (who is also Tiger'smother), Ms Rong Kang (Ms Kang) has brought an application for recall of letters ofadministration and grant of probate. Pending determination of that application,Perpetual seeks a temporary stay of Tiger's claim, and a stay of Tiger's concurrentapplication for summary judgment.Background[4] Alexander appeared to have died intestate. On 16 March 2021, Perpetual wasgranted letters of administration for Alexander's estate.[5] The beneficiaries of Alexander's estate are his:(a) widow, Ms Kang; and(b) children, Gavin Brown, Julia Dobson, Natalie Brown and Tiger.1 Given the commonality of surnames, I will refer to the Browns by their given names throughoutthis judgment.[6] Before applying for letters of administration, Perpetual attempted to locateAlexander's will. It asked the beneficiaries for any information that would assist.Only Gavin responded, confirming he was not aware of any will.[7] Once Perpetual was granted letters of administration, it began to investigatethe estate's assets. On 6 April 2021, it wrote to the beneficiaries seeking informationabout the assets. Tiger responded several weeks later, disputing the Properties formedpart of Alexander's estate. Tiger and Perpetual continued to exchange letters over theensuing months, with Tiger stating he would commence proceedings if the Propertieswere not transferred to him.[8] On 17 September 2021, Perpetual advised Tiger its provisional view was thatthe Properties were likely held on bare trust for him. It said it expected to make adecision on 28 September 2021 and that Tiger's foreshadowed litigation wasunnecessary. Tiger said he would give Perpetual until 5 pm on that date, and that hewould file proceedings if confirmation was not given by then.[9] On 24 September 2021, Perpetual wrote to all beneficiaries stating its view thatthe Properties were held on bare trust for Tiger and that it intended to transfer legalownership of all Properties to him. Ms Kang sought further time to respond. Withthis development, Perpetual informed Tiger on 28 September 2021 that it would beinappropriate to transfer him the Properties on that day.[10] On 30 September 2021, Ms Kang's solicitors wrote to Perpetual, informing itthat Alexander's will had been found in Hong Kong. The will named Ms Kang asexecutor of Alexander's estate. Ms Kang's solicitors advised that she intended toapply for probate and requested Perpetual take no further steps in respect of the estate.[11] Perpetual wrote to the beneficiaries, advising them of this development andstating it would not take further steps to transfer the Properties to Tiger. Pendingdetermination of who should be the permanent executor or administrator of the estate,Perpetual says it has sought to preserve the estate's position.[12] On 30 November 2021, Tiger filed a claim against Perpetual, alleging breachof trust. He has applied for summary judgment in respect of that claim, seeking thatthe Properties be transferred to him. Perpetual now applies to stay proceedings untila permanent executor or administrator is appointed.[13] Meanwhile, Ms Kang has sought probate of Alexander's will and recall ofletters of administration. The Court has ordered by consent that she file an applicationfor probate in solemn form by 14 June 2022 and Ms Kang has filed that application inthe High Court in Wellington dated 13 June 2022 (CIV-2022-485-316). Perpetual hasprepared and executed a conditional consent to the recall of the letters ofadministration. The consent is conditional on the recall of the letters of administrationbeing ordered on the date probate is granted to Ms Kang.[14] As well as the application for grant of probate and recall of letters ofadministration, there are five further related proceedings:(a) An application by Ms Kang in the Family Court to determinerelationship property of Alexander. Ms Kang's affidavit of assets andliabilities in support of this application includes the Properties(Ms Kang's PRA claim).(b) A claim by Natalie seeking to recover $67 million from the MaungaitiCommercial Trust, a trust settled by Alexander. A hearing is set downfor 14 July 2022 to determine whether this claim should beconsolidated with Ms Kang's PRA claim.(c) A claim by Ms Kang in the Family Court in which she has obtained adeclaration of marriage, enabling her to make a claim under s 182 ofthe Family Proceedings Act 1980 in respect of trusts settled byAlexander.(d) A claim by Gavin in the Family Court for provision under the FamilyProtection Act 1955. Gavin's affidavit in support of the application liststhe Properties. The claim has been adjourned pending determination ofrelated proceedings (Gavin's FPA claim).(e) A claim by Perpetual (initiated before the will was located in the HongKong Court) to determine the ownership of around $200 million worthof depository instruments in Astron Corp Ltd. Perpetual has sought astay of that proceeding pending determination of theadministration/probate issues in New Zealand. The defendant in thatproceeding is Kobe Investments Ltd, a company wholly owned byTiger. Kobe Investments Ltd disputes the claim and has moved to strikeit out.Perpetual's application for stay of proceeding[15] Perpetual seeks orders:2(a) that this proceeding is stayed pending the determination of the extantapplication for recall of letters of administration and for grant ofprobate (CIV-2021-485-603131) or the conclusion of any other Courtprocess that determines who should be the administrator or executorof the estate of Alexander Gavin Brown;(b) costs; and(c) any other orders the Court sees fit.[16] The grounds on which the orders are sought are:3(a) The applicant was granted letters of administration on 16 March 2021and has since been the administrator of the estate of Alexander GavinBrown ("deceased") ("estate"), of which the respondent (who is theplaintiff in these proceedings, Tiger Alexander Brown) is abeneficiary.(b) The applicant has been taking steps to determine the estate's assetssince its appointment as administrator. The estate is highly complex,potentially having assets with a value exceeding NZD $200 million,including the valuable properties (likely in excess of NZD $10million) the subject of the plaintiff's claim in these proceedings. The2 Application for stay of proceeding dated 18 March 2022 at [1].3 At [2].estate is a party to several other ongoing proceedings, which are (asrelevant) detailed below.(c) The applicant was informed on 30 September 2021 that the deceased'slast will and testament ("Will") had been found in Hong Kong,naming Kang Rong (the deceased's widow, and the mother of TigerBrown) as executor of the estate, notwithstanding the earlier(unsuccessful) efforts to locate a will of the deceased.(d) The applicant was also informed on 30 September 2021 that [RongKang] intended to apply for a grant of probate in accordance with theWill in the High Court.(e) Since notification of the matters in paragraphs (c) and (d), theapplicant has been administering the estate effectively on an interimbasis, seeking to preserve the estate's position pending determinationof who will be executor or administrator of the estate on a permanentbasis.(f) The applicant was not provided with a copy of [Rong Kang's]application for recall of letters of administration and for grant ofprobate until 11 March 2022. That application was filed on12 December 2021 and has been allocated the file number CIV-2021-485-603131.(g) It appears inevitable that [Rong Kang's] application for recall ofletters of administration and for grant of probate will be contested bybeneficiaries of the estate, given:(i) that filing has triggered two caveats lodged (presumably, byseparate beneficiaries) against the estate, lodged on 6 Octoberand 16 December 2021, respectively; and(ii) a claim in the High Court with file number CIV-2022-404-08has been filed by Gavin Brown (the deceased's son, from aprevious marriage) seeking an injunction preventing[Rong Kang] from applying for a grant of probate and anorder that the applicant proceed to seek appointment asadministrator.(h) It would be prejudicial to the applicant (and potentially thebeneficiaries of the estate) and/or an abuse of process for thisproceeding to be heard and determined before an order from the Courtas to who will be the executor or administrator of the estate on apermanent basis.(i) The permanent executor or administrator will be able to make a finaldecision on whether the properties should be transferred to theplaintiff, thereby potentially avoiding the need for these proceedings.(j) It would also be prejudicial to the applicant (and potentially thebeneficiaries of the estate) and/or an abuse of process for thisproceeding to be heard and determined prior to probate issues beingresolved, because the properties the subject matter of theseproceedings are included in two other proceedings:(i) a claim in the Family Court (with no file number allocatedyet) under the Family Protection Act 1955 by Gavin WilliamBrown for such provision from the estate that the Court seesfit, which names the four properties that are the subject of thisproceeding; and(ii) an application initially filed in the Family Court with filenumber FAM-2021-004-001075 by [Rong Kang] under theProperty (Relationships) Act 1976 (under which she haschosen option A) to determine the relationship property of thedeceased, which, depending on the whether the fourproperties are held on bare trust, may include such properties(this application has recently been transferred to the HighCourt).(k) There can be no prejudice to the respondent and he would not bedeprived of access to the Court because the applicant seeks only atemporary stay pending resolution of the extant probate proceedings.(l) Considerations of cost, convenience and the overall interests of justicesupport the granting of a stay of proceedings. There is a real risk ofunfairness or oppression to the applicant and the estate if theseproceedings are not stayed.Affidavit of Mr David Boyce dated 18 March 2022[17] Mr David Boyce, branch manager of Perpetual's Christchurch branch, hasmade two affidavits in support of Perpetual's stay application. In the first, dated18 March 2022, he deposes Perpetual was granted letters of administration on16 March 2021, as it was then understood that Alexander had died intestate. He saysPerpetual made extensive efforts to locate a will, including by requesting informationfrom the beneficiaries. Only Gavin responded to these requests, stating he wasunaware of any will.4[18] Mr Boyce deposes that Tiger informed Perpetual on 27 April 2021 that he didnot consider the Properties formed part of Alexander's estate. He says Perpetualsubsequently was able to form the view that the Properties were likely held on baretrust for Tiger, subject to further information from the beneficiaries. Solicitors forMs Kang later informed Mr Boyce that Alexander's will had been located inHong Kong, and that it named Ms Kang as executor. The solicitors requestedPerpetual not take further steps in respect of the estate. Perpetual agreed.54 Affidavit of David Ronald Boyce dated 18 March 2022 at [4]–[6].5 At [8]–[10].[19] Thereafter, Mr Boyce says, he considered Perpetual's role as administrator toeffectively be limited to preserving the estate's position. He says Perpetual takes noview on who should be the proper administrator of the estate and it will abide theCourt's decision on that matter. To that end, it has consented to the recall of letters ofadministration on the basis that such an order is only made on the date on whichprobate is granted to Ms Kang.6[20] Mr Boyce notes the family is in a number of disputes about assets that may ormay not form part of Alexander's estate. He says there is also a dispute about whoshould oversee the estate, and that the former cannot be resolved without resolution ofthe latter. On those grounds, Mr Boyce says he does not consider it appropriate forPerpetual to dispose of estate assets while the issue of administration and probate isoutstanding. Any disposition now would be inconsistent with Perpetual's obligationto preserve the estate's position and act in its best interests.7Affidavit of Mr Boyce dated 1 June 2022[21] In his second affidavit, dated 1 June 2022, Mr Boyce deposes that Ms Kang(as at that date) had not yet filed an application for probate in solemn form.Notwithstanding that, he says progress has been made towards resolution of the futureof the administration of the estate (either by the appointment of a judge to case managethe various proceedings or the filing of an application in solemn form).8 As noted at[13] above, the Court has since ordered Ms Kang to file application for probate insolemn form by 14 June 2022 and Ms Kang has filed that application dated 13 June2022 in the Wellington High Court.[22] Mr Boyce deposes further that given developments in related proceedings, andthat a solemn form application for probate is anticipated, Perpetual's solicitors wroteto Tiger's solicitors enquiring whether Tiger would still like to proceed with thehearing of the present interlocutory matters. Tiger's solicitors responded that itintended to proceed unless Perpetual had changed its position on the transfer of theProperties. Mr Boyce says Perpetual's position is unchanged, and that it considers it6 At [11]–[15].7 At [19]–[20].8 Affidavit of David Ronald Boyce dated 1 June 2022 at [4]–[11].has conducted itself appropriately in the context of a complex and potentially highvalue estate.9Tiger's notice of opposition to application for stay of proceeding[23] Tiger opposes Perpetual's application to stay the proceeding.10 The grounds ofopposition are:11(a) The application for recall of letters of administration and for the grantof probate (CIV-2021-485-603131) has no relevance to thisproceeding.(b) The four New Zealand residential properties that are the subjectmatter of this proceeding do not form part of the estate of AlexanderGavin Brown as they are held on bare trust for the plaintiff.(c) The identity of the administrator of the estate has no bearing on whichassets form party of the estate or whether the properties must betransferred to the plaintiff pursuant to the declarations of bare trust.(d) In any event, both the defendant and [Rong Kang], who is theapplicant in proceeding CIV-2021-485-603131, have accepted that theproperties are held on bare trust for the plaintiff and should betransferred to him.(e) No prejudice will be caused to the defendant nor the beneficiaries ofthe estate by the determination of the application for summaryjudgment:(i) If the Court determines that the properties do not form part ofthe estate, the properties will have no relevance to GavinBrown's claim under the Family Protection Act 1955 (FAM-2022-004-000196).(ii) [Rong Kang's] application under the Property (Relationships)Act 1976 (FAM-2021-004-001075) does not affect theplaintiff's title to the properties. Further, the determination ofthis proceeding will not prejudice any claim by [Rong Kang]to the properties.(f) It will not be an abuse of process for this proceeding to be heard anddetermined prior to the determination of proceeding CIV-2021-485-603131 or the other claims relating to the estate. The issue to bedetermined in this proceeding is not the subject of other proceedingsbefore another court nor are the parties to this proceeding parties to aduplicate proceeding.9 At [13]–[14].10 Notice of opposition to application for stay of proceeding dated 1 April 2022 at [1]–[2].11 At [3].(g) There is no risk of unfairness or oppression to the defendant if theproceedings are allowed to continue.(h) Considerations of cost, inconvenience and the interests of justice donot weigh in favour of staying the plaintiff's claim.(i) The granting of a stay will be oppressive and cause undue delay to theplaintiff. It is in the interests of justice that the plaintiff's applicationfor summary judgment is determined as efficiently as possible.Tiger's affidavit dated 30 November 2021[24] Tiger has not made an affidavit specifically in support of his opposition toPerpetual's stay application. However, he made an affidavit dated 30 November 2021in support of his application for summary judgment, the contents of which are relevantto the stay application.12[25] Tiger deposes that Perpetual holds the Properties on bare trust for him. He sayshe has claimed against Perpetual in his capacity as sole beneficiary of the bare trusts,his cause of action being an alleged breach of Perpetual's trustee duties.13[26] Tiger deposes that on 17 July 2017, Alexander executed four declarations ofbare trust, one in relation to each of the Properties. He says four deeds of instructionwere concurrently executed, along with authority and instruction forms and landtransfer tax statements in relation to each of the Properties. He says the only reasonthe Properties were not able to be transferred at that time was that Alexander did nothave an IRD number.14[27] Tiger says he has been meeting the outgoings on the Properties since around2017, and that he has been receiving rental income from two of the Properties in recentyears. He says that on 20 December 2019, Gavin lodged caveats on the titles of theProperties. The caveats were discovered when Tiger's lawyers ran title searches forthe Properties. Tiger says that on 18 June 2021, his lawyers invited Gavin to withdrawthe caveats. Gavin declined to do so, indicating he was "not prepared to accept" at12 Affidavit of Tiger Alexander Brown in support of interlocutory application on notice by plaintifffor summary judgment against defendant dated 30 November 2021.13 At [4]–[8].14 At [15]–[19].that stage that the Properties did not form part of Alexander's estate. Tigersuccessfully applied to lapse the caveats.15[28] Tiger deposes that Perpetual wrote to him on 27 April 2021, advising that theProperties were not part of the estate and were instead held on bare trust for him. On24 September 2021, Perpetual notified him it had formed the view that the declarationsof trust were valid and binding. He says Perpetual said it intended to transfer theProperties to him after checking with the other beneficiaries whether they had anyrelevant information.16[29] After Alexander's will was discovered in Hong Kong, Tiger says, Perpetualadvised the beneficiaries it could no longer continue fully to act in the role ofadministrator. Subsequently, his lawyers wrote to Perpetual's lawyers making furtherrequests for transfer of the Properties and stating Tiger would file proceedings toenforce the bare trusts if the Properties were not transferred. Perpetual continued todecline to transfer the Properties for so long as the probate issue remained.17[30] Tiger says it is unclear why Perpetual refuses to transfer the Properties when ithas already accepted they are held on bare trust, do not form part of Alexander's estateand should be transferred to him. He says there is no basis for Perpetual's continueddelay, given Ms Kang (as the likely incoming executor) has already confirmed theProperties should be transferred. The delay has been prejudicial to his position, andhe needs to sell at least one of the properties to fund the legal fees that he andKobe Investments Ltd are incurring. He is unable to secure lending against theproperties and is missing out on investment opportunities as a result.18[31] Concluding, Tiger says Perpetual is the trustee of the bare trusts. Thedeclarations of trust are explicit that the Properties are to be transferred to him at hisrequest. He says that over the last five months he has made seven requests for theProperties to be transferred, but Perpetual has continually refused to do so.15 At [20]–[26].16 At [30]–[35].17 At [36]–[46].18 At [47]–[49].He requests the Court's assistance in enforcing the bare trusts so that the Propertiesare transferred to him.19Perpetual's submissions[32] Mr Nathaniel Walker, for Perpetual, submits there is a real risk of unfairnessor oppression to Perpetual and Alexander's estate if the proceedings are nottemporarily stayed. There would be prejudice and delay, if not abuse of process, if theproceeding were to progress before the proper executor or administrator of the estateis determined, and with the Properties included as the subject matter of two separateproceedings. As well, a temporary stay would not deprive Tiger of access to the Court.The Court should exercise its discretion to grant stay accordingly.20[33] Mr Walker submits it would be prejudicial to hear this proceeding before theissue of permanent administration of Alexander's estate is determined. If Ms Kangsucceeds in obtaining probate and recall of the letters of administration, Perpetual willno longer have legal title to the Properties, let alone the power to determine whetherthey are part of Alexander's estate or to transfer them to Tiger. For so long asPerpetual's capacity as administrator is in question, it is inappropriate for it todetermine or distribute estate assets. It is questionable whether it is even in Perpetual'spower presently to do so. Once a permanent administrator or executor is appointed, itwill be in a position finally to decide the ownership of the Properties, and to transferthem to Tiger as appropriate.21[34] Further, Mr Walker says it is relevant that the Properties have been included intwo proceedings separate from the present proceeding (Ms Kang's PRA claim andGavin's FPA claim). If a stay of the present proceeding is not granted, Perpetual is atrisk of a claim by the estate's beneficiaries for breach of its duties as administrator intransferring the properties; those beneficiaries may be prejudiced in pursuing theirown proceedings; and there would be an abuse of process in that ownership of the19 At [50].20 Defendant's submissions in support of application for stay of proceedings dated 1 June 2022 at[3.4].21 At [4.1]–[4.8].Properties would be determined in multiple proceedings. In those circumstances, itwould be premature for Perpetual to transfer the Properties to Tiger.22[35] Mr Walker submits Tiger would not be prejudiced by the stay. The stay wouldnot deprive Tiger of his right of access to the courts. Perpetual is not refusing totransfer the Properties to Tiger; rather, it is waiting for a determination that it isempowered to do so and that this is the correct legal outcome. Upon determination ofthe probate issue, the proper administrator or executor of the estate will be able todetermine the issue of the Properties' ownership.23[36] Mr Walker says Perpetual seeks costs to recognise that Tiger's litigation isunnecessary, and that Perpetual has been acting consistently with its obligations topreserve the position of the estate pending determination of the probate issue.Perpetual's concerns as to the progression of the present proceeding are appropriate.24Tiger's submissions[37] Mr Mark Sandelin, for Tiger, submits it would not be prejudicial to determinethese proceedings before a permanent administrator is appointed. He says the identityof the administrator is irrelevant to the beneficial ownership of the Properties —whether the Properties form part of the estate is not a matter for the executor'sdiscretion. He says both Perpetual and Ms Kang have confirmed the bare trusts arevalid. While Perpetual holds legal title to the Properties by virtue of beingadministrator, it holds those titles in its capacity as trustee of the bare trusts. Therecan be no prejudice to the executor or administrator if this proceeding is determined.25[38] Mr Sandelin submits there is no question Perpetual has power to transfer theProperties at this stage. It remains the administrator of the estate. In any event, ifPerpetual is concerned about its power to transfer the Properties, the Court can simplyvest the Properties in Tiger.26 There is no risk Perpetual will be exposed to a claim by22 At [4.9]–[4.15].23 At [4.16]–[4.19].24 At [5.1].25 Synopsis of argument for the plaintiff in response to defendant's submissions in support ofapplication for stay of proceedings dated 7 June 2022 at [25]–[30].26 At [31]–[33].a beneficiary if it transfers the Properties — any transfer would take place pursuant toa court order. And there is no potential prejudice to the other beneficiaries. Despitehaving had ample opportunity, none have challenged the declarations of bare trust.27[39] Further, Mr Sandelin submits, the other proceedings in which the Propertiesare involved do not challenge the validity of the declarations of bare trust. He saysTiger's claim should not be stayed simply on the premise that a third party may, atsome future time, change its position regarding the validity of the declarations of trustor the beneficial ownership of the Properties.28[40] In Mr Sandelin's submission, Tiger has not brought double proceedings. Hehas not initiated proceedings in any other court to determine the beneficial ownershipof the Properties and has not been joined to the other proceedings on which Perpetualrelies in its application for stay. The transfer of the Properties is a discrete issue thatwill be more efficiently and rapidly determined in this Court, without duplication ofcosts.29[41] Mr Sandelin submits that granting Perpetual's sought stay would be prejudicialto Tiger. Tiger has no present ability to access the equity in the Properties, and hisinability to pay his legal costs is prejudicial to his position in the numerous relatedproceedings presently on foot.30[42] Summarising, Mr Sandelin submits there are no grounds for the stay ofproceeding. Perpetual's application is predicated on theoretical future possibilities,and the identity of the administrator has no impact on whether the Properties are heldon trust for Tiger. Swift resolution of this matter will assist in advancing all mattersinvolving Alexander's estate towards conclusion — considerations of cost,convenience and the interests of justice do not weigh in favour of stay.3127 At [34]–[36].28 At [37]–[46].29 At [47]–[53], citing So v Shi [2022] NZHC 214.30 At [54]–[55].31 At [56]–[58].Legal principles[43] Rule 15.1 of the High Court Rules 2016 provides:15.1 Dismissing or staying all or party of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.(2) If the court strikes out a statement of claim or a counterclaim undersubclause (1), it may by the same or a subsequent order dismiss theproceeding or the counterclaim.(3) Instead of striking out all or part of a pleading under subclause (1),the court may stay all or part of the proceeding on such conditions asare considered just.(4) This rule does not affect the court's inherent jurisdiction.[44] The principles relating to stay are well-known. Under r 15.1(3) and the Court'sinherent jurisdiction, the Court may stay a proceeding. Its discretion will be informedby the considerations in r 15.1(1).32[45] In determining whether to stay a proceeding, the Court will have regard tooverall costs, convenience, and the interests of justice. Sensible case management isone reason favouring stay.33 Overlapping proceedings causing inefficiencies oramounting to an abuse of process may also warrant the grant of stay.34 But stay shouldonly be exercised in "rare and compelling circumstances", where there is a "real riskof unfairness or oppression to the defendant if the proceedings were allowed tocontinue". The onus is on the applicant to establish such circumstances.3532 Danone Asia Pacific Holdings Pte Ltd v Fonterra Co-Operative Group Ltd [2014] NZHC 1681 at[34]. See also Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53at [89].33 Kidd v Registrar-General of Land [2021] NZHC 1747 at [8]. See also Danone Asia PacificHoldings Pte Ltd v Fonterra Co-Operative Group Ltd, above n 32, at [33] and [54].34 Yeoman v Public Trust Ltd [2011] NZFLR 753 (HC) at [76]–[80]; and Zhou v Yue [2019] NZHC2167 at [80]–[84].35 Danone Asia Pacific Holdings Pte Ltd v Fonterra Co-Operative Group Ltd, above n 32, at [55].Analysis[46] Questions to be answered in determining this proceeding are:(a) Does Perpetual have power to transfer the Properties pending resolutionof the issues of the permanent executor/administrator of the estate?(b) Could the transfer of the Properties prior to determination of thepermanent executor/administrator cause prejudice to Perpetual and/orthe beneficiaries of the estate, or amount to an abuse of process? Inparticular, if the stay is not granted, will it cause prejudice, and/oramount to an abuse of process because the Properties are included intwo other extant proceedings filed by other beneficiaries of the estate?(c) What is the prejudice to Tiger if the stay if granted?(d) Do the overall considerations of cost, convenience and the interests ofjustice weigh in favour of granting the stay?I will consider each of these questions in turn.Does Perpetual have power to transfer the Properties pending resolution of the issueof the permanent executor/administrator of the estate?[47] Mr Walker asserts that there is a real question as to whether Perpetual has thepower to transfer the Properties at this stage. He submits that as there are extant legalproceedings regarding recall of letters of administration and a new application for agrant of probate under the will, Perpetual's position is analogous to that of anadministrator under an order nisi, or a temporary administrator under s 17 of theAdministration Act 1969. Such administrators have limited powers and do not havepower of distribution of estate assets. He relies on the decision in Jurisich v Harris.36[48] Mr Sandelin, on the other hand, submits that the situation is distinguishablefrom Jurisich v Harris. In that case, an order nisi had been granted and the powers of36 Jurisich v Harris [2016] NZHC 525, [2016] NZAR 754 at [25] and [37]–[39].the interim administrator were clearly limited. Mr Sandelin also points tocorrespondence by Perpetual and by its solicitors, confirming that until the letters ofadministration are recalled and probate granted, Perpetual remains the legaladministrators of the estate.37[49] I prefer the view put forward by Mr Sandelin that Perpetual does remain thelegal administrator of the estate until such time as recall of the letters of administrationand grant of probate, and accordingly has the power to transfer the Properties. Evenif this conclusion is not correct, I also accept Mr Sandelin's point that following theoutcome of the summary judgment application, if Tiger is successful, the Court couldorder vesting of the Properties in Tiger, thereby avoiding the need for Perpetual toundertake any transfer in its capacity as administrator and bare trustee.[50] However, while Perpetual may have the legal power as current administratorof the estate to transfer the Properties, in my view it has correctly taken the positionthat, given its status as administrator is yet to be determined, its situation is analogousto a temporary administrator and it is premature for it to dispose of estate assets whichare the subject of other extant proceedings. Consistent with this position, it hasundertaken to Ms Kang's solicitors not to take any further steps in respect of the estate.This weighs in favour of granting the stay.Could the transfer of the Properties prior to determination of the permanentexecutor/administrator cause prejudice to Perpetual and/or the beneficiaries of theestate, or amount to an abuse of process? In particular, if the stay is not granted willit cause prejudice and/or amount to an abuse of process because the Properties areincluded in two extant proceedings filed by the other beneficiaries of the estate?[51] Mr Walker submits that while Perpetual had reached a preliminary view thatthe trust deeds in favour of Tiger appeared valid, it had not yet reached a final view Itnow cannot do so until the issue of the permanent executor/administrator is resolved.He submits that Perpetual's goal is to preserve the position of the estate pending thatdetermination.37 Submissions for the plaintiff in response to the defendant's submissions in support of applicationfor a stay of proceedings, above n 25, at [32].[52] Mr Walker submits that there is a risk, if the proceedings are not stayed,Perpetual will be exposed to a potential claim by beneficiaries for its failure to meetits duties and obligations as an administrator. He submits that in particular Perpetualwould be forced to distribute assets despite the uncertainties relating to its status asadministrator and the assets being included in two other extant proceedings, asdiscussed below. He submits that such a distribution would also be contrary toPerpetual's assurance to the beneficiaries that it would not take any steps in theadministration of the estate while the question of the permanent executor/administratoris outstanding. This assurance was given at the request of the named executor in thewill, Ms Kang.[53] Mr Walker submits the stay should be granted as the Properties are included intwo extant proceedings involving the estate -—Ms Kang's PRA claim and Gavin'sFPA claim. He submits that if the stay is not granted there is a risk that:(a) Perpetual will be prejudiced by being exposed to the risk of a claim bythe other beneficiaries for breach of its duties as administrator intransferring the Properties;(b) the beneficiaries bringing those other proceedings will be prejudicedbecause the Properties are no longer part of the estate if their claims aresuccessful; and/or(c) there would be an abuse of process of the Court whereby ownership ofthe Properties is determined in multiple proceedings.[54] Mr Walker submits it is not yet clear whether ownership of the Properties willbe disputed or resolved in Ms Kang's PRA claim or Gavin's FPA claim, as these claimsare both at an early stage.[55] Mr Walker acknowledges that the plaintiff has not filed double proceedings inmultiple courts. In that respect, the decision of Kidd v Registrar-General of Land38can be distinguished as in that case a dispute surrounding the ownership of farm38 Kidd v Registrar-General of Land, above n 33, at [13]–[14].property led to multiple proceedings in the Māori Land Court and the High Court.However, as submitted by Mr Sandelin, in that case the proceedings were dealing with"essentially the same issues" between parties.39[56] However, Mr Walker does rely on the decision in Zhang v Deng,40 for authorityfor the proposition that while two sets of proceedings may be separate, they may alsobe "sufficiently connected so that it would be unrealistic to divorce them to determinethem in tandem without reference to each other". He submits this is the case in relationto these proceedings, Ms Kang's PRA claim and Gavin's FPA claim. Accordingly, astay should be granted.[57] Mr Sandelin, on the other hand, submits that in the proceedings brought byMs Kang and the proceedings brought by Gavin, no challenge has been made to thedeclarations of trust on which Tiger relies for his claim to ownership of the Properties.In relation to Gavin's FPA claim, Mr Sandelin in his submissions41 extracts paragraphsfrom Gavin's affidavits suggesting that nowhere does Gavin challenge the validity ofthe bare trust. He asserts that Gavin has recognised that the determination of theseproceedings to determine ownership of the Properties is necessary before the extent ofthe assets of the estate can be assessed for the purposes of Gavin's FPA claim.[58] In my view, there is a possibility that, as part of Gavin's FPA claim, there couldbe a challenge to the ownership of the Properties. Gavin did lodge caveats, althoughhe allowed them to lapse. There is, in my view, a risk of prejudice to Perpetual andthe other beneficiaries of the estate that the Properties are removed from the estatebefore the issue of the permanent executor/administrator is determined and thepermanent executor/administrator makes a final decision regarding whether the baretrusts are valid.[59] In relation to Ms Kang's PRA claim, Mr Sandelin has pointed to the fact thatMs Kang has not challenged the validity of the declarations of bare trust and indeedthe letter from Ms Kang's solicitors, dated 5 November 2021, advised that Ms Kang39 At [10].40 Zhang v Deng [2019] NZHC 2531 at [53].41 Submissions for the plaintiff in response to the defendant's submissions in support of applicationfor a stay of proceedings, above n 25, at [40]–[43].agrees the Properties are held on bare trust for the plaintiff and should be transferredto him.[60] However, against this, the Properties are included in Ms Kang's PRA claim,which again is at an early stage. It is conceivable that the bare trusts may ultimatelybe challenged as part of that claim, with consequent prejudice to Perpetual andbeneficiaries of the estate if the Properties were transferred to Tiger and removed fromthe estate.[61] Mr Sandelin relies on the decision in So v Shi.42 He argues that this decisioncan be applied by analogy to the present proceedings, and so I deal with it in somedetail. In that case, the plaintiff (Mr So) sought summary judgment against his sonand daughter-in-law, claiming they held certain shares on bare trust for him. The sonand daughter-in-law had separated and the issue of ownership of the shares was alsoraised in the contest of a Property (Relationships) Act 1976 dispute between the sonand daughter-in-law in the Family Court.[62] The daughter-in-law opposed the summary judgment application on the basisthat she disputed the validity of the bare trustee. She sought a strike-out or stay ofMr So's claim on the basis that the Family Court was already seized of the disputeover the ownership of the shares and the proceeding was consequently an abuse ofprocess. Davison J declined to grant the stay.[63] Mr Sandelin points out that, unlike the present case, the stay was declinednotwithstanding there was a dispute as to the validity of the trust deed; the proceedingsin the Family Court also directly involved the issue of Mr So's beneficial ownershipof the shares; Mr So was joined as a respondent to the proceedings in the Family Courtwhich had been filed before the commencement of the High Court proceeding; and hehad filed an affidavit in that proceeding setting out his claim to the beneficialownership of the shares.42 So v Shi [2022] NZHC 214.[64] Mr Sandelin submits that Davison J in that decision declined to grant the stayfor the following reasons, which Mr Sandelin submits are applicable to the presentcase:(a) The plaintiff had not initiated proceedings in the Family Court. Theplaintiff was only a third party not directly involved in the Family Courtproceedings and had not commenced the High Court proceedingsseeking determination of the issues he had already sought to havedetermined in the Family Court. Mr Sandelin submits that similarlyTiger has not initiated the proceedings in any other court to determinethe beneficial ownership of the Properties and, as in So v Shi, Tiger is athird party not directly involved in the Family Court proceeding anddid not commence these proceedings seeking determination of issueshe had already sought to be determined in the Family Courtproceedings.(b) Although Mr So had filed a lengthy affidavit in the Family Courtproceedings setting out the basis for his claim to beneficial ownershipof the shares, by doing so he did not seek relief from that Court by wayof ownership. He sought recognition of his beneficial ownership ratherthan determining legal ownership. Mr Sandelin submits that similarlyTiger has not been joined to the proceedings relied upon by Perpetualand has not filed any documents in those proceedings.(c) Davison J found that the resolution of the Mr So's claim to beneficialownership of the shares could be determined more rapidly andefficiently in the context of the High Court proceedings. Mr So's claiminvolved a discrete legal issue and, as he was the third party to theFamily Court dispute, there was no compelling reasons why his claimshould be determined by the same Court that would determine therelationship property dispute. Mr Sandelin submits that in the presentcase the matters relied on by Perpetual are not ready for a hearing.He says, analogous with Mr So, that the dispute around the Propertiesis a discrete legal issue that would be more efficiently and rapidlydetermined by this Court, and there will be no duplication of costs asthis proceeding is ready to be determined now.[65] Mr Walker sought to distinguish So v Shi on the basis that it did not involve achallenge to the status of the administrator but only a challenge to the status of thebare trust. As I understand Mr Walker's argument in the present case, as the staysought is only pending resolution of the issue of permanent executor/administrator andnot until resolution of Ms Kang's PRA claim and the resolution of Gavin's FPA claim,this makes So v Shi less applicable to the present case. If the stay was sought untilresolution of Ms Kang's PRA claim and Gavin's FPA claim, then delay, as was a factorin So v Shi, is less applicable and does not weigh in favour of declining the stay to theextent it might have.[66] My overall conclusion on this issue is that there is risk of prejudice to Perpetualand the beneficiaries of the estate if Perpetual is obliged to transfer the Properties priorto resolution of the permanent executor/administrator. The two extant proceedingspresently do not include challenges to the bare trusts relied on by Tiger for his claimto the Properties but the proceedings could evolve to include those challenges. As inthe Zhang v Deng decision, the proceedings are "sufficiently connected" that there isa risk that ownership of the Properties could be at issue in multiple proceedings.What is the prejudice to Tiger if the stay is granted?[67] Mr Sandelin submits that a stay will be a prejudicial to Tiger. He submits thatTiger has no present ability to access the equity in the Properties, for example to raisemortgages to fund other investments or costs, including legal costs. Mr Sandelinsubmits that similarly Tiger's company, Kobe Investments Ltd, is currently subject toundertakings preventing the company and Tiger from dealing with the depositoryinstruments that are in issue in the Hong Kong proceedings. He submits the ability ofTiger to pay his legal costs is prejudicial to his position in the numerous proceedingscurrently on foot.[68] Mr Walker submits that the prejudice which Tiger may suffer is not substantial.He submits staying the proceeding does not deprive Tiger of his right of access to theCourts (being a factor which weighed in favour of granting the stay in the Danonedecision) but is only a temporary stay of the proceedings until the permanentexecutor/administrator is resolved.[69] My conclusion on this point is that prejudice to Tiger is not substantial as thestay is only until the issue of the permanent executor/administrator is determined, andaccordingly does not weigh significantly against granting the stay.Do the overall considerations of cost, convenience and the interests of justice weighin favour of granting the stay[70] In my view, these considerations weigh in favour of granting the stay. I basethis on the conclusions I have reached at [50], [66] and [69].Result[71] I make the following orders:(a) This proceeding is stayed pending determination of the extantapplication for recall of letters of administration and for grant ofprobate (CIV-2021-485-603131) or the conclusion of any other Courtprocess that determines who should be the administrator or executor ofthe estate of Alexander Gavin Brown.(b) Costs are awarded to Perpetual on a 2B basis...Associate Judge Taylor