Clair v Clair
[2020] NZHC 1277
•9 June 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2020-463-000017
[2020] NZHC 1277
UNDER the Administration Act 1969, s 21 IN THE MATTER OF
the estate of PATRICK WIREMANA CLAIR
BETWEEN
SHARON ELISABETH CLAIR
Plaintiff
AND
JOSEPHINE MARY CLAIR
Defendant
Hearing: On the papers Counsel:
D W Mayall for Plaintiff
Judgment:
9 June 2020
JUDGMENT OF HINTON J
This judgment was delivered by me on 8 June 2020 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Nieman Peebles Hoult, Hamilton D Mayall, Barrister, Hamilton
CLAIR v CLAIR [2020] NZHC 1277 [9 June 2020]
Introduction
[1] This is an application pursuant to s 21 of the Administration Act 1969 to remove the defendant, Josephine Mary Clair, as the administrator of the estate of the deceased, Patrick Wiremana Clair (the deceased) and to appoint the plaintiff, Sharon Elisabeth Clair, as the administrator of the deceased’s estate.
[2] Administration was granted in favour of the defendant on 6 March 1998 and the plaintiff says that she has failed to distribute the deceased’s estate. The plaintiff also says the defendant re-located to Australia in about 2000 where she has been absent from New Zealand without leaving a lawful attorney.
[3] The defendant has filed a letter with the Court dated 23 March 2020, in which she accepts that in the 21 years since she was appointed administrator of the estate, she has taken no steps to distribute the estate.
[4] The plaintiff contends that the defendant’s letter does not constitute a statement of defence and that the proceedings should accordingly be determined on a formal proof basis.
[5]There are two principal issues for determination:
(a)Should the matter proceed by way of formal proof?
(b)If so, has the plaintiff established, pursuant to s 21 of the Administration Act 1969, the grounds for the removal of the defendant as the administrator?
Background facts
The plaintiff and defendant are daughters of the deceased.
[7] The defendant was appointed the administrator of the deceased’s estate pursuant to a grant of letters of administration upon intestacy issued by the High Court, Hamilton registry, under P96/98 in the estate of the late Patrick Wiremana Clair who died on 20 March 1993, issued on 6 March 1998.
[8]During his lifetime, the deceased was married to Judith Mary Clair (Mrs Clair).
[9]The deceased is the father of the following children:
(a)Patricia Ann Rees;
(b)Lorraine Francis Mahoney;
(c)Daniel Thomas Clair;
(d)Malcom Clair;
(e)Jennifer Kingi;
(f)Wendy Clair;
(g)Vernard Clair;
(h)Anthony Clair;
(i)Nicola Clair;
(j)The defendant; and
(k)The plaintiff;
(“the deceased’s children”).
[10] The deceased died on 20 March 1993 and intestate. He was a registered proprietor as to three out of 19 shares as tenants in common of the property situated at 1000 State Highway 5, Tapapa 3485, set out in Certificate of Title identifier SA9C/1093 (“the property”).
[11] The deceased’s estate remains undistributed and he is accordingly still listed as the registered proprietor as to three out of the 19 shares of the property.
[12] In or about 2000, the defendant re-located to Australia where she has continued to reside.
[13] The plaintiff does not reside on the property but has been managing it since 2003 without remuneration.
[14] All of the deceased’s surviving children (with the exception of the defendant) consent to the appointment of the plaintiff as the administrator of the deceased’s estate.
Analysis and decision
Issue 1: Should the proceedings proceed by way of formal proof?
[15] The requirements of a statement of defence are set out in r 5.48 of the High Court Rules:
5.48 Requirements of statement of defence
(1) The statement of defence must either admit or deny the allegations of fact in the statement of claim, but a defendant does not have to plead to an allegation that does not affect that defendant.
(2) A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out how much was received. When a matter is alleged with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given.
(3)An allegation not denied is treated as being admitted.
(4)An affirmative defence must be pleaded.
(5) The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant's defence.
[16] In her letter to the Court dated 23 March 2020, the defendant has admitted that she:
(a)Has failed to distribute the estate; and
(b)Recused herself as the administrator of the estate through email correspondence.
[17] I accept the submission of the plaintiff that the letter of 23 March 2020 is not properly to be construed as a statement of defence. Rather, it is more akin to an admission of facts as set out in r 15.15 of the High Court Rules. It is clear from the document filed by the defendant that she has no intention to defend the proceedings, although it is equally clear that she wishes to see the whānau enjoy the benefit of the property owned by their father’s estate. The defendant has noted that the property is a whenua tūpuna and a connection for future generations to stand upon as their tūrangawaewae.
[18] In the circumstances, and given the absence of a statement of defence, it is appropriate to determine the application as a matter of formal proof (r 15.9).
Issue 2: Should the defendant be removed as the administrator?
[19] Section 21 of the Administration Act 1969 sets out the circumstances in which an administrator can be removed.
[20]Section 21(1) reads:
21 Discharge or removal of administrator
(1) 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 place, on such terms and conditions in all respects as the Court thinks fit.
[21]The following principles apply to the removal of an administrator:1
(a)The starting point is the Court’s duty to see the estate is properly administered;
1 Todd v Todd [2017] NZCA 501, [2017] 2 NZLR 145; Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154.
(b)This jurisdiction involves a large discretion which is heavily fact- dependent;
(c)The wishes of a testator are to be given consideration, but ultimately the question is what is expedient in the interests of the beneficiaries;
(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty or unfitness need not be established;
(e)Hostilities between the administrators/trustees and the beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.
[22] It is clear from the evidence filed that the defendant has been absent from New Zealand for 12 months without leaving a lawful authority. The evidence establishes that she left New Zealand in 2000 to re-locate to Australia, where she still resides. The estate has clearly not been distributed.
[23] I also accept that the plaintiff has established that it is expedient to remove the defendant as the administrator. It has now been some 21 years since the defendant was appointed the administrator and during that time the deceased’s shares of the property have not been distributed. There may, in the circumstances, be some valid reasons for the defendant failing to have taken any steps in this regard, but it now seems that the best and most expedient way for the estate to be distributed is to remove the defendant and appoint the plaintiff as the administrator.
[24] Although the plaintiff does not reside on the property, it is her evidence that she has been managing the property since 2003 without remuneration. Furthermore, and importantly, but for the defendant, the deceased’s other surviving children all consent to the appointment of the plaintiff as administrator.
[25]For all these reasons, I conclude that the applications should be granted.
Result
[26] I make an order pursuant to s 21 of the Administration Act 1969 that the defendant be removed as the administrator of the estate of Patrick Wiremana Clair.
[27] I order that the plaintiff be appointed as the administrator of the estate of Patrick Wiremana Clair.
[28]There is no order as to costs this is a whanau issue.
Hinton J
0
0
1