Estate of Brown - [2025] NZHC 1544

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-301

[2025] NZHC 1544

UNDER the Administration Act 1969, the Trusts Act 2019 and Pt 19 of the High Court Rules 2016

IN THE MATTER

of the Estate of STEPHEN SIDNEY BROWN

AND

IN THE MATTER

of an application by ROMEO MARGARITIS, ELIZABETH ROBIN MEARS and TYLER MATTHEW BROWN

Applicants

Hearing: On the papers

Counsel:

R L Powell for Applicants

Judgment:

12 June 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 June 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RE ESTATE OF S BROWN [2025] NZHC 1544 [12 June 2025]

Introduction

[1] There are applications by the executors and trustees of the Estate of Stephen Sidney Brown (Mr Brown) seeking:

(a)leave to commence this proceeding by way of originating application; and

(b)an order discharging and removing Romeo Margaritis as an executor and trustee.

[2] All persons with an interest in the application consent to the making of the orders sought and accordingly it is a matter that can be determined by an Associate Judge.1

[3] The applications are supported by an affidavit of Mr Margaritis and a helpful memorandum of counsel, Ms Powell.

Background

[4]The facts are summarised in Ms Powell’s memorandum, which I adopt.

[5] Mr Brown died on 2 September 2023. He was survived by his spouse, Elizabeth (Liz), and his three children from a prior relationship, Tyler, Shona and Carl.

[6] Probate in common form of Mr Brown’s final will dated 5 June 2013 was granted on 26 February 2024. Tyler, Shona, Carl and Liz are the only beneficiaries of the will.

[7] Pursuant to the will, Liz, Tyler and Mr Brown’s lawyer, Mr Margaritis, were appointed as executors and trustees of the Estate.

[8] Liz initially elected to forego her entitlements under the will to claim under the Property (Relationships) Act 1976.2 She subsequently chose to accept the will, subject

1 Senior Courts Act 2016, s 20(1)(g).
2 Property (Relationships) Act 1976, s 61.

to terms of settlement with the other beneficiaries. Those terms are set out in a Deed of Family Arrangement (the Deed) executed on or about 1 April 2025 between Liz in her personal capacity, the executors and trustees, and the beneficiaries.

[9] On 13 October 2024, Mr Margaritis had an accident which has resulted in an ongoing disability. He remains on extended sick leave for the foreseeable future and consequently wishes to be discharged from his duties as an executor and trustee.

[10]Clause 12 of the Deed provides as follows:

(a)as Mr Margaritis is on extended sick leave an application will be made to the High Court under s 21 of the Administration Act 1969 seeking his discharge as executor;

(b)all parties consent to Mr Margaritis being discharged and released as executor and agree to a copy of the Deed being provided to the Court in support of the application;…

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.

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Details

Case: [2025] NZHC 1544
Decision Date: 12 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, an application was made by the executors and trustees of the Estate of Stephen Sidney Brown, seeking leave to commence the proceeding by way of an originating application and the removal of Romeo Margaritis as an executor and trustee. The application was supported by all beneficiaries and had the consent of all interested parties. The case was determined by Associate Judge Paulsen, who granted the requested orders.

The primary legal issue was whether the Court should permit the application to proceed by way of an originating application and whether it should discharge Romeo Margaritis as an executor and trustee. The Court considered various factors, including the nature of the application, the interests of justice, and the statutory criteria for discharging an executor and trustee. The Court also evaluated whether appointing a professional executor and trustee was necessary, given the modest nature of the estate and the agreement of all beneficiaries that it was not required.

Associate Judge Paulsen found that the application was appropriate for the originating application procedure, as it involved straightforward statutory tests and undisputed facts. The Court concluded that it was in the interests of the beneficiaries to grant the orders sought. The estate was largely administered, and all beneficiaries agreed that it was expedient to discharge Romeo Margaritis without appointing a replacement professional executor and trustee. The Court emphasised that the primary duty was to see estates properly administered and trusts properly executed, and in this case, the remaining aspects of estate administration could be handled efficiently by the existing executors with legal support.

The Court made orders granting leave to proceed by way of originating application and dispensing with service. It also ordered the discharge and removal of Romeo Margaritis as an executor and trustee of the Estate of Stephen Sidney Brown and that the costs of the proceeding be borne by the estate.

Orders