Lane
[2017] NZHC 1800
•1 August 2017
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV-2017-443-38 [2017] NZHC 1800
UNDER the Insolvency Act 2006 IN THE MATTER
of the estate of Shaun Quigley
AND
IN THE MATTER
of an application pursuant to ss 380 and
385 of the Act byMELISSA MARGARET LANE
On the papers Judgment:
1 August 2017
JUDGMENT OF ASSOCIATE JUDGE SMITH
Introduction
[1] Ms Lane applies by way of originating application, without notice, for orders under ss 380 and 385 of the Insolvency Act 2006 (the Act), that:
(a) the estate of Shaun Quigley be administered under pt 6 of the the Act;
(b)the applicant no longer administer the estate and that the Official Assignee or other person the court thinks appropriate administer the whole of the estate henceforth.
[2] Ms Lane also applies for:
(a) an order vesting the whole of the estate in the appointee, under s 387 of the Act;
RE LANE [2017] NZHC 1800 [1 August 2017]
(b) directions as to service of this application and order; and
(c) payment of costs of due administration of the estate prior to any transfer of administration, under s 393 of the Act.
Background
[3] Ms Lane has filed a supporting affidavit. She explains that she was in a relationship with Mr Quigley for about 15 years, and that there were two children of that relationship. Mr Quigley died on or about 23 April 2016, leaving a will in which Ms Lane was named as executor. Probate of that will was granted to Ms Lane on 1 December 2016. Ms Lane and Mr Quigley were separated at the time of his death.
[4] Ms Lane’s investigations have disclosed that Mr Quigley’s estate consists of assets totalling approximately $21,230. She has identified and listed in her affidavit debts totalling approximately $26,400. She deposes that there is an additional
$23,000 owing to the late Mr Quigley’s parents, and $12,700.55 for funeral expenses paid by Mr Quigley’s parents.
[5] Ms Lane also refers to possible claims against the deceased’s estate, being a sum of approximately $13,000 believed to have been wrongfully obtained by the deceased from the Woodleigh Sports Club, and an amount in the hundreds of thousands of dollars believed to be owing by the late Mr Quigley to his employer.
[6] Ms Lane deposes in her affidavit that she has set out to the extent of her knowledge, correct details of the deceased’s assets, debts and liabilities.
Analysis
[7] Leave is required for the application to be dealt with on a without notice basis, and as an originating application, pursuant to rules 7.46 and 19.5 of the High Court Rules. I am satisfied that the interests of justice are served by dealing with the application on this basis, and that the application is appropriately made as an originating application under pt 19 of the High Court Rules. There appears to be
no other party who might be adversely affected by the orders and there would be
undue delay if the application does not proceed on a “without notice” basis.
[8] Section 380 of the Act provides:
Application by administrator, etc
(1) The administrator, or a person who is applying to the court for a grant of administration, may apply to the court for an order that the estate be administered under this Part if the administrator or person applying ascertains that the money in the estate, together with the proceeds of any assets in the estate that can conveniently be converted into money, will not be, or is not likely to be, enough to meet the several claims on the estate.
(2) The application may be—
(a) joined with an application for a grant of administration in respect of the deceased’s will or of the deceased’s property that does not form part of his or her estate; or
(b) made at any time after that grant of administration.
(3) An applicant under this section, in addition to the application, must file in the court an account that shows the assets, debts, and liabilities of the deceased, to the extent that the applicant knows what they are.
(4) The account—
(a) must be verified by affidavit; and
(b) may be amended from time to time; and
(c) must be filed—
(i) when the application is filed; or
(ii) within the prescribed time after the application is filed; or
(iii) within the additional time that the court allows.
[9] I am satisfied on Ms Lane’s evidence that the money in the late Mr Quigley’s estate, together with the proceeds of any assets in the estate that could conveniently be converted into money, will not be enough to meet the several claims on his estate.
[10] As executor, Ms Lane is the administrator of Mr Quigley’s estate, and she has
filed and verified by affidavit the accounts as required by s 380(3) and (4) of the Act.
[11] Section 385 of the Act provides:
Court may order administration by Assignee or Public Trust
(1) This section applies if an application has been filed for an order to administer an estate under this Part, and the court thinks that the estate is likely to be better administered by one of the persons mentioned in subsection (2)(b) than by the person who is or may become the administrator.
(2) The court may, as part of its original order on the application or by any subsequent order, order that—
(a) the administrator (if there is one) must no longer administer the estate; and
(b) the Assignee, Public Trust, or some other person, as the court thinks appropriate, must administer the estate.
[12] Section 387 of the Act provides “the whole of the estate at the date when the application for the order under this part was filed vests in the person appointed by the court to administer it (the appointee).”
[13] Given her past relationship with Mr Quigley, and the complexity surrounding the distribution of his estate, Ms Lane considers that the Official Assignee or the Public Trust would be better placed than her to administer the estate. I agree. As the estate is clearly insolvent, I think the Official Assignee is best placed to take over the estate administration. The matters relevant to the administration of the estate, in particular the potential claims against it, are complex and suited to administration by the Official Assignee.
Result
[14] I accordingly order:
(a) leave is granted to commence the proceeding by way of originating application, without notice;
(b)the estate of the late Shaun Quigley is to be administered under pt 6 of the Act;
(c) Ms Lane must no longer administer the estate of the Mr Quigley;
(d)the Official Assignee at Hamilton must administer the late Mr Quigley’s estate. In accordance with s 387 of the Act, the whole of the deceased’s estate at the date when Ms Lane’s application was filed vests in the Official Assignee;
(e) payment of Ms Lane’s reasonable costs of and incidental to the application are payable to her as proper costs in the due administration of the deceased’s estate, under s 393(1) of the Act;
Associate Judge Smith
Solicitors:
Govett Quillam Solicitors, New Plymouth for the Applicant
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