RE BARRY JAMES SHEARD [2022] NZHC 2140

RE BARRY JAMES SHEARD [2022] NZHC 2140

Because the Public Trust agreed to act and the caveator consented, and because appointment was necessary to enable completion of an unconditional contract for sale and proper administration of the estate, the Court permitted commencement by originating application, appointed the Public Trust as temporary administrator with authority to complete the sale, pay debts and expenses and hold proceeds pending final distribution, and authorised the Public Trust to charge fees under the Public Trust Act 2001 and the Administration Act 1969; applicant's costs were ordered to be paid from the estate.

Citation
[2022] NZHC 2140
Parties
Applicant (executor): Paul Francis McCormick; Deceased: Barry James Sheard; Caveator (son, Claims Interest): David James Sheard; Proposed Temporary Administrator: Public Trust (Christchurch)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 August 2022
Procedural Posture
Administration Proceeding Under Administration Act 1969 for Appointment of Temporary Administrator / Originating Application (on the Papers) Seeking Permission to File and Appointment)
Outcome
Proceeding permitted to be commenced by originating application; Public Trust appointed temporary administrator limited to specified tasks; applicant's costs to be paid from the estate.
Legal Topics
Temporary Administration, Caveat, Completion of Sale of Property, Appointment of Public Trust, Court Permission to Commence by Originating Application, Fees and Charges
Estate Administration Probate Property Law Trusts Civil Procedure Temporary Administration Caveat Completion of Sale of Property +3 more

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Parties

Paul Francis McCormick

Applicant (executor)

Barry James Sheard

Deceased

David James Sheard

Caveator (son, Claims Interest)

Public Trust (Christchurch)

Proposed Temporary Administrator

Procedural Posture

Administration Proceeding Under Administration Act 1969 for Appointment of Temporary Administrator / Originating Application (on the Papers) Seeking Permission to File and Appointment)

Legal Issues

  1. 1 Whether the Court should permit commencement by originating application under HCR 19.5(2)
  2. 2 Whether the Public Trust should be appointed temporary administrator to enable completion of a contract for sale despite a caveat lodged by the deceased's son
  3. 3 Whether the temporary administrator should be authorised to pay debts, funeral and testamentary expenses and to hold sale proceeds pending distribution

Ratio Decidendi

Because the Public Trust agreed to act and the caveator consented, and because appointment was necessary to enable completion of an unconditional contract for sale and proper administration of the estate, the Court permitted commencement by originating application, appointed the Public Trust as temporary administrator with authority to complete the sale, pay debts and expenses and hold proceeds pending final distribution, and authorised the Public Trust to charge fees under the Public Trust Act 2001 and the Administration Act 1969; applicant's costs were ordered to be paid from the estate.

Court Disposition

Proceeding permitted to be commenced by originating application; Public Trust appointed temporary administrator limited to specified tasks; applicant's costs to be paid from the estate.

Orders

  • Permitting the proceeding to be commenced by originating application under HCR 19.5(2)
  • Appointing the Public Trust at Christchurch as temporary administrator of the will of Barry James Sheard dated 11 September 2019 on terms: (i) to complete settlement of the sale of the deceased's property at 63 Perry Street, Christchurch, pursuant to a memorandum of contract dated 22 June 2022; (ii) authorising the...