Mokotupu v Rakei-Clark - [2024] NZHC 2412

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV 2020-463-000084

[2024] NZHC 2412

UNDER the Administration Act 1969 and Part 18 of the High Court Rules 2016

IN THE MATTER OF

The Estate of RONGO MAKI UPOKO

BETWEEN

BETTY ANNIE MOKOTUPU

Plaintiff

AND

JOHN MATA RAKEI-CLARK

Defendant

Hearing: 26 August 2024

Appearances:

M B Beech for the Plaintiff

No appearance for the Defendant

Judgment:

27 August 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 27 August 2024 at 11.00am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Wynyard Law Ltd, Taupō M B Beech, Tauranga Copy to the Defendant

MOKOTUPU v RAKEI-CLARK (The Estate of RONGO MAKI UPOKO) [2024] NZHC 2412 [27 August 2024]

Introduction

[1] Ms Betty Mokotupu applies to remove her brother, Mr John Rakei-Clark, as co-executor and co-trustee of their mother’s estate under s 21 of the Administration Act 1969 (the Act). The claim has been listed for formal proof because Mr John Rakei- Clark’s statement of defence has been struck out.

[2] The estate assets comprise funds held in the trust account of the estate’s solicitors and a half-share in a property at Firth Place, Rotorua (the Firth Pl property). Mr Rakei-Clark owns the other half-share of the Firth Pl property.

[3] Ms Mokotupu also seeks vacant possession and orders for sale of the Firth Pl property. The Firth Pl property is currently registered in the name of Mr Rakei-Clark and the deceased, Ms Rongo Upoko.

[4] I indicated at the hearing that in circumstances where the estate only owns a half-share in the Firth Pl property, the plaintiff must plead the legal basis for seeking sale as against Mr Rakei-Clark as the other co-owner (separate to his capacity as beneficiary under the estate). Currently the claim only seeks directions under s 21 of the Act and does not seek any orders under the Property Law Act 2007. Further, evidence is required as to the nature of the borrowings which are currently secured by way of mortgage to the Bank of New Zealand as registered on the title. It is unclear whether the borrowings were for the benefit of both co-owners or only Mr Rakei- Clark.

[5] I appreciate that it is not in the interests of the beneficiaries for the estate to incur unnecessary costs, but the legal basis for possession and sale orders as against Mr Rakei-Clark as co-owner needs to be pleaded and there needs to be sufficient evidence to enable the Court to be satisfied that such orders are necessary. There is also the complication that there may be a tenant in the Firth Pl property. I therefore indicated to Mr Beech, counsel for Ms Mokotupu, that I will only determine the issue of removal of Mr Rakei-Clark as administrator and will provide further directions so that the issues of possession and sale can be determined separately.

[6] Before considering whether Mr Rakei-Clark…

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 Mokotupu v Rakei-Clark

Details

AGLC: Mokotupu v Rakei-Clark [2024] NZHC 2412
Case: [2024] NZHC 2412
Decision Date: 27 August 2024

CaseChat Overview and Summary

Ms Betty Mokotupu has applied to remove Mr John Rakei-Clark as co-executor and co-trustee of their mother's estate, Ms Rongo Maki Upoko, under section 21 of the Administration Act 1969. The estate assets include funds held in the trust account of the estate's solicitors and a half-share in a property at Firth Place, Rotorua. Mr Rakei-Clark owns the other half-share of the property. Ms Mokotupu also seeks vacant possession and orders for sale of the Firth Pl property. The property is currently registered in the name of Mr Rakei-Clark and the deceased, Ms Rongo Upoko. The court was required to determine whether Mr Rakei-Clark should be removed as administrator of the estate.

The court found that Mr Rakei-Clark should be removed as administrator for several reasons. The court's duty is to see estates properly administered and trusts properly executed. The evidence indicates that there may be a tenant in the property, and Mr Rakei-Clark is incarcerated, making it impossible for him to administer the estate. The property is in a state of disrepair and requires maintenance, which Mr Rakei-Clark has failed to address despite living in the property. Additionally, there is a mortgage registered against the title of the Firth Pl property. Mr Rakei-Clark claims that the estate is liable for some of the borrowings and owes him for expenses incurred in relation to the property, but the court does not have sufficient evidence to determine the reasonableness of these claims. Ms Mokotupu has offered Mr Rakei-Clark an opportunity to purchase the estate's half share in the Firth Pl property, but the evidence indicates that he is unlikely to be able to afford to do so, especially now that he is incarcerated. Given these circumstances, it is expedient that Mr Rakei-Clark be removed as administrator.

In conclusion, the court ordered that Mr Rakei-Clark be removed as trustee and executor of the estate of Rongo Upoko. Ms Mokotupu was granted leave to amend the claim to plead the legal basis upon which the estate seeks orders for possession and/or sale of the Firth Pl property as against Mr Rakei-Clark as co-owner, file evidence in support of any amended claim, and seek further directions arising from the amended claim.

Orders