Kellock v Kellock
[2022] NZHC 155
•11 February 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-536
[2022] NZHC 155
UNDER sections 112, 114 and 133 of the Trusts Act
2019
IN THE MATTER OF
the estate of David Kellock (deceased)
BETWEEN
LISA MARIE KELLOCK
Plaintiff
AND
ALAN JOHN KELLOCK
Defendant
On the papers: Counsel:
A S Cavanaugh for Applicant No appearance for Defendant
Judgment:
11 February 2022
JUDGMENT OF CHURCHMAN J
Background
[1] David Kellock (the deceased) died on 18 December 2009. He left a Will dated 30 November 2009. Probate of that Will was granted on 19 November 2010.
[2] The primary asset of the estate is a one-half share in a property situated at 428 Mangaone Road North, Reikorangi on the Kapiti Coast. The owner of the other half-share in the property is the deceased’s brother, and the defendant in these proceedings, Alan John Kellock. Alan Kellock is an executor and trustee in the estate of David Kellock.
KELLOCK v KELLOCK [2022] NZHC 155 [11 February 2022]
[3] He resides in a house on the property at 428 Mangaone Road North, Reikorangi. He has paid no rent for the estate’s half-share in that property since the death of the deceased on 18 December 2009.
[4] The beneficiaries in the deceased’s estate are the plaintiff (Lisa Marie Kellock), David William Lawrence Kellock, Tina Ann Kellock and Kiriana Maria Mihi Callis, who are the surviving children of the deceased. All have been served with copies of the applications in these proceedings. In accordance with directions made by Isac J on 5 October 2021, the defendant has also been served. The directions gave the defendant until 21 December 2021 to file a defence. No defence has been filed.
[5] David W L Kellock, Tina Kellock and Kiriana Callis all consent to orders being made removing the defendant as an executor and trustee of their late father’s estate, and appointing Sheree Royanne Tunbridge as replacement executor and trustee.
[6] Ms Tunbridge is the mother of two of the beneficiaries of the estate (the plaintiff and Tina Kellock).
[7] The grounds advanced in support of the application to replace the defendant with Ms Tunbridge are that no progress has been made in the administration of the estate since 2009, and there has been no distribution to beneficiaries and is unlikely to be until the property at Mangaone Road North can be sold.
Analysis
[8] The Court’s jurisdiction to remove and replace executors and administrators is contained in s 21 of the Administration Act 1969. That section authorises the Court, where it becomes expedient to discharge or remove an administrator to do that, and appoint such person as the Court thinks fit in his place.
[9] The Court of Appeal in Tod v Tod confirmed that the starting point is the Court’s duty to see that estates are properly administered and trusts properly executed. That case is also authority for the propositions that:1
1 Tod v Tod [2015] NZCA 501 at [22].
Expedience is a lower threshold than necessary, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty or unfitness need not be established.
[10]In Crick v McIlraith, Osborne AJ said the term “expedient”:2
Imports considerations of suitability, practicality, and efficiency. In the context of estate administration the use of the term “expedient” therefore demands an overarching question – will removal of the administrator be a suitable, practicable and efficient means of advancing the interests of the estate and of its beneficiaries?
[11] The facts indicate that the defendant, as co-owner of the property, which is the primary asset of the estate, is in a direct conflict of interest situation. That conflict with the beneficiaries has not been able to be resolved since 2009. I am satisfied that these facts make it “expedient” (as that term has been defined in the cases referred to above) to remove the defendant as executor and trustee and replace him with Sheree Royanne Tunbridge.
[12] The plaintiff also seeks a further order that the property at 428 Mangaone Road North, Reikorangi, the title of which is contained in Certificate of Title WN7A/927 and which is legally described as Lot 1 on Deposited Plan 30239, be sold in accordance with s 339 of the Property Law Act 2007.
[13] Given the stalemate between the parties since 2009 and the conflict of interest position that the defendant is in, this is an appropriate case for an order that the property described in [12] above is to be sold and I direct that Ms Tunbridge is authorised to attend to that.
[14] The plaintiff seeks costs on a 2B basis against the respondent personally. This application has only become necessary because of the position adopted by the respondent over the last 12 years. It is appropriate that he personally pay costs which I fix on a 2B basis.
Outcome
[15]I make the following orders:
2 Crick v McIlraith [2012] NZHC 1290 at [18].
(a)removing the defendant as an executor and trustee of the estate of David Kellock;
(b)appointing Sheree Royanne Tunbridge as a replacement executor and trustee of the estate of David Kellock;
(c)vesting all land owned by the estate, being a one-half share in the property at 428 Mangaone Road North, Reikorangi contained in Certificate of Title WN7A/927 and legal described as Lot 1 on Deposited Plan 30239, in the plaintiff and Sheree Royanne Tunbridge as replacement trustee;
(d)pursuant to s 133 of the Trusts Act 2019 directing the plaintiff and the replacement executor and trustee to file separate proceedings under s 339 of the Property Law Act 2007 seeking directions for sale of 428 Mangaone Road North, Reikorangi contained in Certificate of Title WN7A/927 and legal described as Lot 1 on Deposited Plan 30239; and
(e)for costs on a 2B basis against the defendant personally.
Churchman J
Solicitors:
Greg Kelly Law Limited, Wellington for Applicant
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