Clair v Clair - [2020] NZHC 1277

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…

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 Clair v Clair

Details

AGLC: Clair v Clair [2020] NZHC 1277
Case: [2020] NZHC 1277
Decision Date: 9 June 2020

CaseChat Overview and Summary

In Clair v Clair, the plaintiff, Sharon Elisabeth Clair, sought to remove the defendant, Josephine Mary Clair, as the administrator of the estate of their late father, Patrick Wiremana Clair, and to be appointed in her place. The defendant had been granted administration of the estate in 1998 but had taken no steps to distribute it, having relocated to Australia around 2000. The plaintiff argued that the defendant had failed to distribute the estate and had not left a lawful attorney, and that it was expedient to remove her as administrator and appoint the plaintiff instead. The defendant did not contest the plaintiff's claims, accepting that she had not distributed the estate and had recused herself as administrator. The court considered whether the proceedings should proceed by way of formal proof and whether the plaintiff had established grounds for the defendant's removal. The court found that the defendant's letter to the court was not a statement of defence but an admission of facts and that the matter should proceed by way of formal proof. The court also found that the plaintiff had established that it was expedient to remove the defendant as administrator and to appoint the plaintiff instead. The court ordered that the defendant be removed as administrator and that the plaintiff be appointed in her place.

This case is an example of the court's discretion in appointing and removing administrators of an estate. The court's primary consideration is the proper administration of the estate and the interests of the beneficiaries. The court may remove an administrator if it is expedient to do so, even if the administrator's absence or failure to distribute the estate is not due to misconduct or unfitness. In this case, the court found that it was expedient to remove the defendant as administrator because she had been absent from New Zealand for over 20 years without distributing the estate and because the plaintiff had been managing the property since 2003 without remuneration. The court also noted that all of the deceased's other surviving children (except the defendant) consented to the plaintiff's appointment as administrator. The court's decision in this case highlights the importance of properly administering an estate and the role of the court in ensuring that the estate is distributed in a timely and efficient manner.

Orders