Green v Green HC Hamilton M329/00

[2001] NZHC 844

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY M329/00

BETWEEN CAROLINE TAIMAIWAHO GREEN
Plaintiff

AND GEOFFREY GREEN and DIANE TE PANIA GREEN
Defendants

Hearing: 11 September 2001

Counsel: K S Smith for the Plaintiff

Date of Judgment: 11 September 2001

ORAL JUDGMENT OF PATERSON J

Solicitors
Swarbrick Dixon, DX GA 29004. Te Awamutu
K G Smith, PO Box 19-010, Hamilton

[1] There is before the Court an application to remove Geoffrey Green and Diane Te Pania Green as administrators of the estate of Kohatu Green. Mr Green died on 8 December 1982 and under the terms of his will the two defendants, together with Thomas Green and Lynette Green (described in the will as Lynette Pollock), were appointed administrators and trustees of the will. Thomas Green died in 1989. The application was set down by the Master by way of formal proof.

[2] The order is sought under section 21 of the Administration Act 1969 which gives this Court power to remove an administrator if it is expedient to do so.

[3] This matter has a lengthy history before the Court and there was at one stage a prospect that the defendants would resign as trustees or alternatively sign papers transferring residuary realty of the estate to the beneficiaries. It is their refusal to sign these transfers that has led to the application. The evidence establishes to my satisfaction that the administration of the estate is now complete and that the residual realty can and should be transferred to the beneficiaries. I am satisfied from the evidence given, including evidence in this Court this morning, that all beneficiaries are sui juris and there are no ongoing trusts to be administered. The land owned by the estate is leased but the beneficiaries are entitled, in accordance with the terms of the will, to have that land transferred to them, subject to the lease. The two defendants have refused to do so.

[4] There have been several family meetings in an endeavour to resolve this matter but the defendants steadfastly refuse to join in any transfer. I am advised that they have given no reasons for such refusal. In fairness it should be noted that at one stage Geoffrey Green did sign a memorandum under which he admitted that the plaintiff was entitled to an order removing both himself and his co-defendant as administrators of the estate. Evidently his co-defendant or her partner destroyed the original of the document after Geoffrey had signed it. He has however taken no further action and has not been prepared to sign the transfer.

[5] This is a case where the estate is due for distribution and the administrators have an obligation to transfer it to the beneficiaries. In the circumstances it is expedient to remove the two defendants under section 22 of the Administration Act and there will be an order accordingly. In one sense the defendants are also trustees for the beneficiaries and in exercise of the Court’s inherent power I remove them as such trustees. These orders will allow the remaining administrator to complete the administration of the estate.

[6] The plaintiff who is supported by other beneficiaries, seeks costs. The Court has a discretion in this matter and would normally be reluctant to order costs in a family matter such as this as such an order will no doubt not improve relationships between members of the family. However the Court in exercising its discretion also follows a rule that costs normally follow the event. In view of the attitude of the defendants I have determined that this is an appropriate case to award costs. While costs are sought jointly I do have reservations at ordering Geoffrey Green to pay the same costs as Diane Green because he was prepared to sign the memorandum of relief. However, he could have taken further action to facilitate the matter, although I note that if he had it would still have been necessary to make application to the Court. In the circumstances I propose to order that Diane Green pay costs totalling $1,250.00 and that Geoffrey Green pay costs totalling $625.00.