Hinde v Cranwell - [2012] NZHC 63

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-000882 [2012] NZHC 63

BETWEEN MARIAN SYBIL HINDE Plaintiff

ANDRUSKIN LEWIS CRANWELL First Defendant

ANDDAVID FRANKLIN CRANWELL Second Defendant

Appearances: M J Ruffin for Plaintiff
S Connelly for Defendants
R Broad for Guardian Trust

Judgment: 7 February 2012

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
7 February 2012 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
M J Ruffin, PO Box 1662, Shortland Street, Auckland 1140
S Connolly, PO Box 1348, Shortland Street, Auckland 1140
Copy to:
W M Patterson, PO Box 1772, Shortland Street, Auckland 1140
A McEwan, PO Box 446, Napier 4140 (DX NP 70034, Napier)
R Broad, Guardian Trust, PO Box 913, Wellington 6140 (richard_broad@nzgt.co.nz)

HINDE V CRANWELL HC AK CIV-2011-404-000882 [7 February 2012]

Introduction

[1] John Franklin Cranwell appointed three of his four children, Marian, Ruskin and David as administrators of his estate. Probate was granted in early August 2008. No substantial distribution of the estate has been achieved in the period since. The administrators blame each other for this. In particular Marian considers that Ruskin and David have been derelict in the performance of their duties and are in a position of conflict. Ruskin and David cannot, it appears, work with Marian and consider that she is predisposed against them. They contend that it is expedient that all of them are removed as administrators.

[2] The key issue in this case is whether I should remove any or all of the children and if so, on what basis.

Background

[3] The late John Cranwell died on 12 July 2008. The four beneficiaries under his will are his four children, Lucille, Marian, Ruskin and David.

[4] Probate was granted on 11 August 2008. The primary assets under the will are two unit title apartments (one in Freemans Bay and one in Mission Bay). The other assets include:

(a) A share portfolio of listed companies;

(b) Some chattels held by Ruskin and David;

(c) A balance of $150,000 of various unsecured on demand loans acknowledged in the unilateral deed of acknowledgement of debt between John Cranwell and Ruskin, as to an advance of $50,000 and in a further unilateral deed of acknowledgement between John Cranwell and Ruskin as to an advance of $150,000.

(d)A loan of $150,000 from John Cranwell to David and to others as trustees of the David Cranwell Family Trust and trustees of Margaret Cranwell Family Trust recorded in a loan deed dated 6 August 2002.

Procedural background

[5] At the conclusion of the hearing in August 2011 the parties agreed that matters might best be resolved via an appointment of the New Zealand Guardian Trust Company Limited (“Guardian Trust”) as an administrator to work collaboratively with the executors. To that end consent memoranda were filed and an order was made appointing Guardian Trust as an additional administrator of the estate. Subsequent to the sealing of that order, the Guardian Trust lodged…

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 Hinde v Cranwell

Details

AGLC: Hinde v Cranwell [2012] NZHC 63
Case: [2012] NZHC 63
Decision Date: 7 February 2012

CaseChat Overview and Summary

In the case of Hinde v Cranwell, the High Court of New Zealand was tasked with deciding whether to remove any or all of the named administrators of the estate of John Cranwell, who passed away in July 2008. The administrators in question were his three children, Marian, Ruskin, and David, who had been appointed as administrators in accordance with John Cranwell's will. The primary assets under the will were two unit title apartments and a share portfolio of listed companies. The dispute arose from the alleged dereliction of duty by Ruskin and David, as claimed by Marian, who also accused them of conflicts of interest due to their personal debts to the estate.

The court considered the jurisdiction to remove an administrator under section 21 of the Administration Act 1969, which allows for the removal of an administrator if it becomes expedient to do so. The court held that the executors could no longer work together efficiently due to the severe tension in their family relationships, and that the removal of one or more of the administrators was necessary for the proper and efficient management of the estate. The court also noted the potential conflicts of interest arising from Ruskin and David's personal debts to the estate.

Ultimately, the court decided to remove Marian, David, and Ruskin as executors and replace them with the Guardian Trust, a professional trust company. The court believed that the Guardian Trust would be better suited to efficiently manage the estate and resolve the disputes between the siblings. The court also reserved leave for all parties to apply for directions in respect of any aspect of the further administration of the estate and encouraged the parties to resolve any costs disputes amongst themselves.

Orders