Kawe-Small v Ching - [2017] NZHC 1563

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000472 [2017] NZHC 1563

IN THE MATTER
of the estate of WHAKAAWI MANGO

KAWE, deceased

BETWEEN

TIAHUIA KAWE-SMALL Plaintiff

AND

RANGITAHI CHING First Defendant

RAUKAHA RARAKA Second Defendant

Hearing: 9 June 2017

Appearances:

G H J Brant for Plaintiff
K W Burroughs for First Respondent

Judgment:

7 July 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 7 July 2017 at 3.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

KAWE-SMALL v CHING & OR [2017] NZHC 1563 [7 July 2017]

Introduction

[1] Whakaawi Mango Kawe died in 2002 leaving a valid will under which her son, Kereti Kawe, and daughters, Rangatahi Ching and Raukaha Raraka, were named executors. Mr Kawe died in 2012 without probate having been obtained. Now Mr Kawes’ daughter, and the executor of his estate, Ms Tiahuia Kawe-Small, has applied under s 19(1) of the Administration Act 1969 for a grant of administration with will annexed in relation to her grandmother’s estate. The estate is relatively modest; it comprises mainly a piece of land in Taupiri estimated to be worth between $150,000 – 200,000.

[2] Mrs Ching opposes the application. Because of historical grievances between her and Mr Kawe she regards it as inappropriate for his daughter to assume the position of sole administrator. She does not wish to act as executor herself. She has indicated a desire that her daughter, Priscilla Ching (who has indicated her willingness), be appointed either alone or as a co-executor with Ms Kawe-Small.

[3] Nor does Ms Raraka wish to act as executor. She has indicated her wish not to participate in the proceedings and to abide the decision of the Court.

[4] The proceeding has a confused procedural background and I mention only the aspects that are relevant now. In her amended statement of claim Ms Kawe-Small sought an order nisi calling upon Mrs Ching and Ms Raraka to show cause why letters of administration should not be granted to her and, subject to the Court being satisfied that no reason existed, an order granting her letters of administration with will annexed. Mrs Ching filed a statement of defence and affidavits in opposition. Ms Raraka filed a memorandum indicating that she would not take steps.

[5] The application came before Muir J in October 2016. It appears not to have proceeded to a hearing because the Judge instead raised the possibility of appointing the Public Trust as a means of rehabilitating family relationships. He made a consent order that the Public Trust be appointed, but conditional on the Public Trust consenting to act; Ms Kawe-Small was granted leave to renew her application if

consent was not given.1 The Public Trust indicated its wish not to consent. Ms Kawe-Small accordingly renewed her application.

[6] I therefore treat the application as a fresh application under s 19(1) for an order nisi that Mrs Ching and Ms Raraka show cause why Ms…

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 Kawe-Small v Ching

Details

AGLC: Kawe-Small v Ching [2017] NZHC 1563
Case: [2017] NZHC 1563
Decision Date: 7 July 2017

CaseChat Overview and Summary

In Kawe-Small v Ching, the deceased, Whakaawi Mango Kawe, left a valid will naming Kereti Kawe and her daughters, Rangatahi Ching and Raukaha Raraka, as executors. Kereti Kawe died without proving the will, leading to Ms. Tiahuia Kawe-Small, Kereti's daughter and the executor of his estate, applying for a grant of administration with the will annexed. The estate in question is a property in Taupiri, valued between $150,000 to $200,000. Mrs. Ching opposes Ms. Kawe-Small's application due to historical grievances with Mr. Kawe and does not wish to act as an executor herself, suggesting her daughter, Priscilla Ching, be appointed instead. The legal issues before the court were whether Ms. Kawe-Small should be granted letters of administration under Section 19(1) of the Administration Act 1969 and, if not, whether an independent executor should be appointed instead. The court found that while Ms. Kawe-Small was competent and entitled to priority under the High Court Rules, special circumstances warranted bypassing the executor. Given the longstanding family grievances and the potential for intractable disputes, the court ruled that an independent trustee should be appointed to administer the estate to avoid further litigation, delay, and expense.

The court ordered that Ms. Kawe-Small's application be refused and that the parties should confer and file memoranda nominating a suitable independent solicitor, with confirmation of consent to act. If the parties could not agree, they were permitted to file separate memoranda. The court reserved leave to counsel to seek a telephone conference if necessary and declined to make any order as to costs, allowing them to lie where they fell.

Orders