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Bolton v Bolton

Bolton v Bolton

Case [2021] NZHC 2692 8 October 2021

Expedience

Administrator Removal

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-000052

[2021] NZHC 2692

UNDER the Administration Act 1969

IN THE MATTER

of the ESTATE OF REGINALD WILLIAM

BOLTON of Tauranga, Deceased

AND IN THE MATTER

of the ESTATE OF WENDY ROBIN

DIANA BOLTON of Tauranga, Deceased

BETWEEN

ELWOOD ALAN ROBERT BOLTON

First Applicant

RAQUEL SAPPHO KYLAH GYPSY TANIA MILLER

Second Applicant

AND

JOHN GRAHAM KENNETH BOLTON as

administrator of the estates of Reginald William Bolton and Wendy Robin Diana Bolton

Respondent

Hearing: 6 October 2021

Appearances:

John Delaney for the Applicants No appearance for the Respondent

Judgment:

8 October 2021

JUDGMENT OF MOORE J

[Formal proof]

This judgment was delivered by me on 8 October 2021 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

BOLTON & ANOR v BOLTON [2021] NZHC 2692 [8 October 2021]

Introduction

[1] The first and second applicants apply for orders under s 21 of the Administration Act 1969 (“the Act”) removing the respondent, as administrator of the estates of Reginald William Bolton and Wendy Robyn Diana Bolton. They also apply for the appointment of Perpetual Trust Ltd in his place.

[2] The respondent was served on 18 June 2021. On 28 June 2021 he attended the first call and was granted an extension of time to file a notice of opposition and affidavit in support. Those documents were ordered to be filed by 16 July 2021. On the date they were due the respondent requested a further extension of time. The orders were extended. The notice of opposition and affidavit were to be filed by 6 August 2021. Neither was filed.

[3]Accordingly, the applicants sought to prove their claim by formal proof.

[4] On 11 August 2021 Associate Judge Gardiner directed the formal proof hearing and made timetabling directions for the filing of submissions and authorities. On the same day the Registry advised the parties, including the respondent of the fixture date. The respondent was directed that if he wished to oppose the applications, he would need to apply to the Court for leave. He has not done so.

[5] The hearing before me proceeded on 6 October 2021. There was no appearance by the respondent. I am more than satisfied he has had ample opportunity to oppose the orders being sought but has taken no effective steps to do so.

Background

[6] Reginald William Bolton (“Reg”) died in 1975. He had three children; Elwood Alan Robert Bolton (“Alan”) (the first applicant), John Graham Kenneth Bolton (“Ken”) (the respondent) and Wendy Robin Diana Bolton (“Wendy”).

[7] Wendy died in 1990. Her only child, Raquel Sappho Kylah Gypsy Tania Miller (“Rachel”), is the second applicant.

[8] Ken has been the administrator of Reg and Wendy’s estates since at least 8 April 1993.

[9] Alan, Ken and Wendy were the beneficiaries of Reg’s estate. Rachel is the sole beneficiary of Wendy’s estate.

[10]Reg’s estate comprises of the following assets:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bolton v Bolton

Details

AGLC: Bolton v Bolton [2021] NZHC 2692
Case: [2021] NZHC 2692
Decision Date: 8 October 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to remove John Graham Kenneth Bolton as the administrator of the estates of Reginald William Bolton and Wendy Robin Diana Bolton. The applicants, Elwood Alan Robert Bolton and Raquel Sappho Kylah Gypsy Tania Miller, sought the appointment of Perpetual Trust Ltd as the replacement administrator. The legal issues in the case included whether John Graham Kenneth Bolton was unfit to act as the administrator and whether it was expedient to remove him. The court found that John Graham Kenneth Bolton was unfit to act as the administrator, as he had failed to properly administer the estates and had acted in his own self-interest. The court also found that it was expedient to remove John Graham Kenneth Bolton as the administrator, as his removal would allow for the efficient and fair administration of the estates. The court ordered that John Graham Kenneth Bolton be removed as administrator and that Perpetual Trust Ltd be appointed as the sole administrator in his place.

The court further ordered that the titles of the three properties be vested in Perpetual Trust Ltd under s 89 of the Land Transfer Act 2017. The court directed that costs be calculated on a 2B basis and that the memorandum as to costs be filed no later than 5:00 pm on Tuesday, 9 November 2021.

Orders