Gambrill v Whitfield - [2013] NZHC 885

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2012-404-006664 [2013] NZHC 885

BETWEEN CHRISTOPHER BOYS GAMBRILL AND LUCY CHARLOTTE MACGINLEY AS TWO OF THE THREE EXECUTORS OF THE ESTATE OF CHARLES BARRY THURSBY WHITFIELD
First Plaintiffs

ANDWYNYARD WOOD (WHITFIELD) TRUSTEE SERVICES LIMITED Second Plaintiff

ANDWILLIAM GUY WHITFIELD Defendant

Hearing: 18 April 2013

Counsel: R G Ewen for Plaintiffs

Judgment: 24 April 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 24 April 2013 at 4.45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Wynyard Wood, Auckland for Plaintiffs

CHRISTOPHER BOYS GAMBRILL AND LUCY CHARLOTTE MACGINLEY AS TWO OF THE THREE EXECUTORS OF THE ESTATE OF CHARLES BARRY THURSBY WHITFIELD V WILLIAM GUY WHITFIELD HC AK CIV 2012-404-006664 [24 April 2013]

[1] Charles Whitfield died on 6 July 2009 leaving a will, dated 24 December

2008, under which he appointed Christopher Gambrill, his solicitor, and his daughter, Lucy MacGinley and his son, William Whitfield, his executors and trustees.

[2] In his will Charles Whitfield divided the net residue of his estate into six equal parts. One part was for his daughter Lucy, another for his son William, two parts were to go to the Barry Whitfield (Lucy) Trust for his daughter and her children as final beneficiaries, and the remaining two parts to the Barry Whitfield (William) Trust for his son William and any children of his.

[3] At the date of Mr Whitfield's death the trustee of the Lucy and William trusts was Wynyard Wood (Whitfield) Trustee Services Limited and under the will Lucy became a trustee of her trust and William a trustee of his.

[4] On this originating application Christopher Gambrill, Lucy MacGinley and Wynyard Wood seek orders removing William Whitfield as an executor and trustee his father's estate and as a trustee of the William Trust, on the ground that he has not participated in their administration, frustrating their administration in the interests of the beneficiaries, of whom he is one.

[5] The application was served on William Whitfield by substituted service at his home address as a result of an order made by Associate Judge Abbott on 7 December
2012. William Whitfield has not filed a statement of defence or entered any appearance. On 21 February 2013 the Associate Judge directed that the claim proceed by way of formal proof under HCR 15.9.

[6] In making that order the Associate Judge set to one side as necessarily hypothetical whether William Whitfield had not responded to service, because he might be an incapacitated person.[1] William Whitfield, he said, is to be presumed competent in the absence of evidence.[2] Medical evidence could only be obtained
[1] High Court Rules, r 4.29.
[2] Erwood v Maxtead [2008] NZCA 139 at [26], Corbett v Western [2011] 3 NZLR 41 at [82].
with William Whitfield's cooperation. If William Whitfield has elected not to

respond to this application, whatever his reason may be, that remains his election to make.

[7] In determining…

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 Gambrill v Whitfield

Details

AGLC: Gambrill v Whitfield [2013] NZHC 885
Case: [2013] NZHC 885
Decision Date: 24 April 2013

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with a case involving the estate of Charles Barry Thursby Whitfield. The plaintiffs, Christopher Boys Gambrill, Lucy Charlotte MacGinley, and Wynyard Wood (Whitfield) Trustee Services Limited, sought to remove William Guy Whitfield as an executor and trustee of his father's estate, arguing that he had not participated in the administration of the estate, thereby frustrating the efforts of his co-executors and trustees. The case, marked as HC AK CIV 2012-404-006664, was heard on 18 April 2013 and judgment was delivered by Keane J on 24 April 2013.

The legal issues at the core of this case revolved around the inherent jurisdiction of the Court to supervise trusts and remove trustees who are not fulfilling their duties. The plaintiffs needed to establish that William Whitfield's refusal to participate in the administration of the estate rendered the executors and trustees incapable of executing their roles. Additionally, the Court had to determine whether the inherent power to remove an executor under s 21(1) of the Administration Act 1969 was applicable in the circumstances.

The Court found that William Whitfield's consistent refusal to engage in the administration of the estate had indeed rendered the executors and trustees incapable of performing their duties. This conclusion was based on the documented instances where William had declined to participate in discussions or sign necessary documents. Keane J exercised the Court's inherent jurisdiction and, under s 21(1) of the Administration Act 1969, ordered the removal of William Whitfield as an executor and trustee of his father's estate. The Court further removed him as a trustee of his own trust, finding that Wynyard Wood was capable of administering the trust alone.

In summary, the Court granted the plaintiffs' application to remove William Whitfield from his roles as executor and trustee of his father's estate and as a trustee of his own trust. The Court did not make any order regarding costs.

Orders