Batchelor v Golightly

[2021] NZHC 2734

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-93 [2021] NZHC 2734

IN THE MATTER

of an originating application under Part 19 of

the High Court Rules

BETWEEN

NICHOLAS JOHN BATCHELOR Applicant

AND

ANDREW JAMES GOLIGHTLY Respondent

Judgment:

(On the papers)

13 October 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 October 2021 at 10 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Lindsay & Francis (Auckland) for Applicant

BATCHELOR v GOLIGHTLY [2021] NZHC 2734 [13 October 2021]

[1]      Mr Nicholas Batchelor is an executor and trustee of his late mother’s estate. The other is Mr Andrew Golightly, a solicitor.   Both were appointed as the administrators of the estate when probate was granted on 10 July 2020.

[2]      Mr Batchelor has two difficulties with remaining as an administrator:

(a)      He is a permanent resident of the United Kingdom.  This impairs his ability to discharge his functions as administrator.

(b)      Mr Thomas Batchelor, his brother, has commenced proceedings in the District Court against him, in his capacity as a beneficiary of the estate, and  against  him  and  Mr  Golightly  as  executors  of  the  estate. Mr Thomas Batchelor alleges undue influence and breach of fiduciary duty.  Mr Batchelor submits this puts him in a conflict of interest.

[3]      Mr Batchelor wants to be discharged as an administrator of the estate because of these difficulties.

[4]      In my minute of 27 September 2021, I granted Mr Batchelor’s application without notice to commence by originating application his proceeding seeking discharge.

[5]      I dispensed with service.

[6]      Pursuant to r 19.7(1), Mr Batchelor’s proposed originating application filed pursuant to r 19.5(3) commenced on 27 September 2021.

[7]      Mr Batchelor now seeks judgment on the papers. Mr Golightly is aware of the application.  He has filed an affidavit consenting to it.  Mr Batchelor submits that no- one will be prejudiced if he is discharged as administrator.

[8]      Section 21(1) of the Administration Act 1969 provides:

Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so

act, or where it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.

[9]      I am satisfied that Mr Batchelor should be discharged. He is resident overseas and he is being sued in his capacity as a beneficiary. He is both impaired by geography in acting as administrator and is conflicted between his status as beneficiary and his role as administrator.

[10]     No-one will  be disadvantaged.    Mr Golightly  is  a solicitor appointed  as administrator.  He consents to Mr Batchelor being discharged.

[11]     I make an order discharging Mr Batchelor as administrator of the estate of the deceased, Leila Margaret Dawson.

[12]     Mr Batchelor’s counsel, in his memorandum of 8 October 2021, suggests that Mr Batchelor should be paid his costs from the estate.  But, everything has been done without notice and on the basis that no-one will be disadvantaged.  Diminishing the estate by a costs award would disadvantage other beneficiaries, and Mr Thomas Batchelor might object.  I bear in mind that trustees are not automatically entitled to have their costs paid from trust funds, and in this case there are allegations in the background of undue influence and breach of fiduciary duty.   If Mr Batchelor continues to seek costs he must file a formal application specifying them.   The application  must  be  on  notice  to  all  beneficiaries,  Mr  Thomas  Batchelor  and Mr Golightly. Any such application must be filed no later than 25 November 2021.

[13]     The call of this matter in the list on 11 November 2021 is vacated.

Brewer J