Heke v Brockie

[2015] NZHC 1502

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-345 [2015] NZHC 1502

UNDER	the Trustee Act 1956
IN THE MATTER OF	the estate of JAMES MITCHELL BROCKIE
BETWEEN	DEBORAH ELSIE HEKE Plaintiff
AND	GLENDA JULIE BROCKIE Defendant

On papers
Judgment:	1 July 2015

JUDGMENT OF DOBSON J

[1]      The statement of claim in this proceeding seeks an order under s 51 of the Trustee Act 1956 appointing the Public Trust as sole trustee in place of Deborah Elsie Heke and Glenda Julie Brockie, the trustees appointed under the will of the late James Mitchell Brockie.  The statement of claim also seeks an order vesting in the Public Trust the remaining funds of the estate, and directing that the remaining funds be paid to the Public Trust for that purpose.

[2]      The Court has previously directed that service be effected on Ms Brockie by email at her known email address, [email protected], and also by service on solicitors, Bruce Young of Wellington and Maude & Miller of Porirua.  There is now evidence of service by those means.

[3]      There has been no response from Ms Brockie, although an email reaction to a letter foreshadowing the present action was dispatched from her email address to

Mr Young and Mr Langford, separate Wellington solicitors who appear to have acted

HEKE v BROCKIE [2015] NZHC 1502 [1 July 2015]

for her.  That communication indicated opposition to the proposed retirement of the existing trustees and appointment of the Public Trust.  It included:

This attachment [the deed of retirement and appointment of trustees] will not be auctioned [sic] or even considered by myself until the other issues and estate bills are paid, one being the IRD returns for dad’s estate.

Again I say get real people.  Step up and take responsibility for your actions and sort these issues out honestly.

That’s my final word.

[4]      In the absence of a response to the proceedings, the Court accepts the state of impasse as pleaded in the statement of claim.  That renders the retirement of existing trustees and appointment of the Public Trust an appropriate step.   Subject to the conditions described below, that relief will be granted.

[5]      There  remains  a  practical  prospect  that  Ms Brockie  is  unaware  of  the consequences of not taking a step in the proceedings.  Accordingly, the retirement of the present trustees and appointment of the Public Trust as the replacement trustee is subject to solicitors for the plaintiff ensuring that all documents relevant to the estate and  any  difference  between  the  plaintiff  and  Ms Brockie  in  relation  to  its administration are provided to the Public Trust, together with the records held by Maude & Miller in relation to their acting in the estate thus far.

[6]      The  Public  Trust  is  charged  with  seeking  an  indication  of  views  from Ms Brockie before administering the balance of the estate, and to that extent leave is reserved for the Public Trust to apply for directions if that becomes appropriate.

[7]      There will be no order as to costs on these proceedings.

Dobson J

Solicitors:

Greg Kelly Law, Wellington for plaintiff