STANBRIDGE v PAKU [2023] NZHC 2604

STANBRIDGE v PAKU [2023] NZHC 2604 [19 September 2023]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECIV-2023-416-001[2023] NZHC 2604UNDER Application for grant of administration debonis non administratis (de bonis non)and/or sections 5 and 21 of theAdministration Act 1969 and/or sections 51,112 and 114 of the Trusts Act 2019IN THE MATTER of the Estate ANNIE DOROTHYCHESLEY also known as ONA CHESLEYBETWEEN GRAEME GEORGE STANBRIDGE andVANESSA ANNE STANBRIDGEPlaintiffsAND JENNIFER LORRAINE PAKU, also knownas JENNIFER LORRANE PAKU (deceased)as Executrix in the ESTATE OF ANNIEDOROTHY CHESLEY also known as ONACHESLEYDefendantHearing: 14 September 2023Appearances: M P Ward-Johnson for PlaintiffsJudgment: 19 September 2023JUDGMENT OF CHURCHMAN J[1] The plaintiffs seek an order under s 21 of the Administration Act 1969 (the Act)discharging and removing the administrator, the late Jennifer Lorraine Paku, alsoknown as Jennifer Lorrane Paku (Ms Paku), of the estate of the late Annie DorothyChesley, also known as Ona Chesley (the deceased). Section 21 of the Act permits theCourt to discharge an administrator where it becomes expedient to discharge andremove them.[2] The plaintiffs also refer to s 112 of the Trusts Act 2019, which authorises theCourt, where it is necessary or desirable, to remove a trustee in circumstances whereit is difficult or impracticable to do so without the assistance of the Court. However,I note that s 114 of the Trusts Act does not empower the Court to appoint an executoror administrator. Therefore the plaintiffs' reliance on this section is misplaced.1[3] Of more relevance is the case law in relation to grants of administration debonis non administratis (de bonis non).The facts[4] The deceased died on or about 3 July 1977. At the date of her death, thedeceased owned various blocks of Māori land and also owned 56.816 out of a total365 shares in a block of land that had previously been Māori land but had becomefreehold land on 26 March 1971. The block of land in question was 7.2236 hectaresin size and described as Wharekahika C39 Block on Identifier GS3C/846 GisborneRegistry (the property). Two other shareholders (including the plaintiffs in theseproceedings) owned the balance of the shares in the property. As at the date of thedeceased's death the property was not subdivided and therefore the deceased'sownership interest was as to an undivided share in the whole block in proportion toher shareholding of the total number of shares.[5] Ms Paku partially administered the estate, and the deceased's interests in thevarious Māori land titles were transferred to the beneficiaries named in the deceased'swill on or about 27 January 1999. However, the deceased's interest in the propertywas never dealt with, with the result that the interest remains in the name of thedeceased.[6] Ms Paku died on or about 1 May 2017.1 See Trusts Act 2019, s 114(2).[7] The sole surviving named beneficiary of the deceased's estate is Nuku TawhitiChesley, named as Nuku Hiohiowhai Chesley in the deceased's will. He was abeneficiary of the deceased's Māori land interests, not the property.[8] The deceased's last will bequeathed her interests in Māori land to certainnamed beneficiaries and directed her executor to hold the residue of her estate forMs Paku, who was described as being her foster daughter.[9] Between 1992 and 2004 the two owners of the majority of the shares in theproperty developed it. Although the property was not formally subdivided, nineindependent lots were developed, most of which had a dwelling erected on them. Partof the land was set aside for the benefit of the deceased. That is known as Lot H.[10] The plaintiffs cannot complete the subdivision project until such time as theadministration of the deceased's estate is completed and the deceased's share in theproperty transferred to the beneficiary under her will.[11] As a result of service directions made by the Court, the former de facto partnerof Ms Paku was served. It was then discovered that Ms Paku had two sons, JimmyEpera Paku (Jimmy) and Teura Llewellyn Matua (Teura). They were also served.[12] There is no evidence that Ms Paku ever made a will and the matter has to beapproached on the basis that she died intestate. In that case a grant of administrationde bonis non is required.2The application[13] After service in accordance with the Court's directions only one party, AliceLorraine McClutchie, has filed a notice of appearance reserving rights.Ms McClutchie was one of the beneficial owners of Lot D in the proposed subdivisionof the property.2 See W M Patterson Laws of New Zealand Administration of Estates Vol I (online ed) at [151]:"Where a sole or last surviving executor dies intestate without having fully administered the estate, the deceased executor's administrator does not become the representative of the originaltestator."[14] The sole surviving beneficiary of the deceased's will, Nuku Chesley, has filedan affidavit confirming that the deceased was his uncle's widow and that to the best ofhis knowledge, his uncle and the deceased did not have children together and his uncledescribed Ms Paku as his step-daughter. Nuku Chesley confirmed that the Māori landinterests referred to in the deceased's will had been transferred to him and his siblings.[15] The application proceeded before me on 14 September 2023. Although allthose who had been directed to be served were notified of the hearing date, nonesought to participate in the hearing. Having heard Mr Ward-Johnson in support of theapplication, I have come to the following conclusions.(a) Ms Paku failed to complete the administration of the estate of thedeceased in that she did not transfer the property to herself asbeneficiary.(b) She appears to have died intestate.(c) An application for de bonis non is therefore required.(d) In terms of s 6(2)(a) of the Act, it is expedient to grant administrationof the estate of the deceased to Perpetual Trust Ltd.(e) Perpetual Trust Ltd will then be able to transfer the deceased's interestin the property to Ms Paku in accordance with the deceased's will.(f) On an intestacy, Ms Paku's two sons, Jimmy and Teura, would appearto be entitled to a transfer to them in equal shares of the deceased's56.816 shares in the undivided whole of the property.(g) It is not for the Court on this application to confirm that the proposedLot H accurately and fairly represents the deceased's interest in theproperty. That will be a matter for confirmation between the plaintiffsand the beneficiaries in Ms Paku's estate.Formal orders[16] I hereby make orders:(a) Discharging or removing the late Jennifer Lorraine Paku as executor inthe estate of the late Annie Dorothy Chesley, also known as OnaChesley, and grant letters of administration with will annexed de bonisnon to Perpetual Trust Ltd.(b) The reasonable costs, including solicitor and client fees, of PerpetualTrust Ltd in relation to the administration of the estate shall be a firstcharge on the deceased's estate.(c) The plaintiffs' reasonable solicitor and client costs of and relating tothis proceeding shall be a charge on the deceased's estate, rankingbehind the administrator's own fees of administration but before anydistribution of the estate and shall be paid by the deceased's estate.Churchman JSolicitors:Buddle Bentley McCleary, Whakatane, for Plaintiffs