Estate of Brown
[2025] NZHC 1544
•12 June 2025
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; and
(c)the costs of the application will be borne by the Estate.
Without notice application to proceed by way of originating application
[11] The substantive application is not one that can be made by way of originating application under pt 19 of the High Court Rules as of right. The Court may permit any proceeding to be commenced by originating application.3 Relevant considerations include where the type of proceeding is a straightforward application, not requiring detailed pleadings or interlocutory orders for its fair resolution.4 The overarching requirement is the interests of justice. In this context, the interests of justice require the Court to secure the just, speedy and inexpensive determination of the proceeding.5
[12] This is an appropriate case for leave to be granted for the reasons identified by Ms Powell in her memorandum, namely:
3 High Court Rules 2016, r 19.5(1).
4 Brown v Brown [2023] NZHC 1180 at [12], citing Hong Kong and Shanghai Banking Corp Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [25].
5 Solar Bright Ltd v Martin [2019] NZHC 300 at [18].
(a)The matter does not require a statement of claim, statement of defence, discovery, interlocutory orders, briefs of evidence, or cross-examination of witnesses.
(b)The application is sought by all three executors and trustees by consent. It is also supported by all beneficiaries of the Estate.
(c)No person will be prejudiced by adoption of the originating application procedure.
(d)The originating application procedure would dispose of the application in a timely and inexpensive manner. This is particularly relevant as the costs of the application will be borne by the Estate, the means of which are modest.
(e)Disposing of the application involves the application of defined statutory tests to undisputed facts.6
The substantive application
[13] The Court has jurisdiction to discharge an administrator under s 21 of the Administration Act. The Court has jurisdiction to discharge a trustee under ss 112 and 114 of the Trusts Act 2019 or its inherent jurisdiction, but here it is appropriate to proceed under the Administration Act because administration of the Estate is incomplete.7
[14]Section 21 of the Administration Act relevantly provides:
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
Administration Act 1969, s 21; Trusts Act 2019, s 112; applying the factors set out in Tod v Tod
[2015] NZCA 501, [2017] 2 NZLR 145 at [22], citing Farquhar v Nunns [2013] NZHC 1670 at
[13] and cited in Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154 at [29].
7 The core duties of an administrator are listed in Re Stewart [2003] 1 NZLR 809 (HC).
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.
...
[15]The legal criteria are well established. The relevant considerations are:8
(a)The starting point is the Court’s duty to see estates properly administrated and trusts properly executed.
(b)This jurisdiction involves a large discretion which is heavily fact dependent.
(c)The wishes of the testator are to be given consideration but ultimately the question is as to 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 need not be established.
[16] Ms Powell identifies that the real question here is not whether to discharge Mr Margaritis but whether he should be replaced by another professional executor and trustee. This arises as through the appointment of Mr Margaritis it can be assumed that Mr Brown wished to have a professional executor who might guide the two family executors through the process and resolve any differences between them.
[17] All beneficiaries have agreed it is not necessary to appoint a professional executor and that the remaining aspects of estate administration may be handled by their lawyers on instructions from Liz and Tyler. Mr Margaritis, in his affidavit, notes that the Estate is modest and has largely been administered. He also says he is confident that Liz and Tyler will be able to see to the final administration of the estate in an efficient manner with appropriate legal support.
8 Farquhar v Nunns, above n 6, at [13]; Frickleton v Frickleton, above n 6, at [29]; and Tod v Tod, above n 6, at [22].
[18] Ms Powell notes that once administration is complete Liz will continue to have a life interest in the Estate’s share of the family home she shared with Mr Brown, and that the Estate’s interest is protected by registration on the title. She also notes professional assistance will be required if Liz wishes to sell the home and purchase a replacement such that there is no practical need for there to be a professional trustee appointed.
[19] I am satisfied it is not necessary to appoint a replacement professional executor and trustee to replace Mr Margaritis in circumstances where the Estate is modest, largely administered, all beneficiaries have agreed to this application and consider it is expedient and in the interests of the beneficiaries for the Court to grant the orders sought.
Result
[20] There shall be orders granting leave to make this application by way of originating application and dispensing with service.
[21] There shall also be orders in terms of paragraphs 1(a) and (b) of the notice of application:
(a)discharging and removing Romeo Margaritis as an executor and trustee of the Estate of Stephen Sidney Brown; and
(b)that the costs of and incidental to this proceeding shall be borne by the Estate.
O G Paulsen Associate Judge
Solicitors:
Lawhub, Christchurch
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