Kellock v Kellock - [2022] NZHC 155

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…

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 Kellock v Kellock

Details

AGLC: Kellock v Kellock [2022] NZHC 155
Case: [2022] NZHC 155
Decision Date: 11 February 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Kellock v Kellock involved a dispute over the administration of the estate of David Kellock, who passed away in 2009. The primary asset of the estate was a one-half share in a property located at 428 Mangaone Road North, Reikorangi, with the defendant, Alan John Kellock, the deceased's brother, owning the other half. Alan Kellock, also an executor and trustee of the estate, had not paid rent for the estate's half-share since David's death and had not made any progress in administering the estate. The beneficiaries, including the plaintiff Lisa Marie Kellock, sought to remove Alan Kellock from his position and replace him with Sheree Royanne Tunbridge, the mother of two of the beneficiaries.

The court was required to determine whether it was expedient to remove Alan Kellock as an executor and trustee and to replace him with Ms. Tunbridge. The court considered the definition of "expedient" as used in previous cases, which required considerations of suitability, practicality, and efficiency. The court found that the conflict of interest between Alan Kellock and the beneficiaries, as well as the lack of progress in administering the estate, made it expedient to remove him and appoint Ms. Tunbridge in his place. Additionally, the court was asked to order the sale of the property and to award costs against Alan Kellock personally.

The court concluded that it was indeed expedient to remove Alan Kellock as an executor and trustee and to replace him with Ms. Tunbridge. The court also ordered the sale of the property and awarded costs against Alan Kellock personally. The final orders of the court included removing Alan Kellock as an executor and trustee of the estate, appointing Sheree Royanne Tunbridge as a replacement executor and trustee, vesting all land owned by the estate in the plaintiff and the replacement trustee, directing the plaintiff and the replacement executor and trustee to file separate proceedings for the sale of the property, and awarding costs against Alan Kellock personally.

Orders