Paikea v Paikea HC Whangarei CIV 2005-488-000511

[2008] NZHC 2515

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2005-488-000511

UNDER  s 21 Administration Act 1969

IN THE MATTER OF     the estate of Turuhira Doris Rapira

BETWEEN  TANIA MAREE PAIKEA Plaintiff

ANDVANESSA DALE PAIKEA (AKA HOPKINS)

Defendant

Hearing:         20 August 2008

Appearances: Cathy Murray for Plaintiff

No appearance by or on behalf of Defendant

Judgment:      20 August 2008

JUDGMENT OF HARRISON J

SOLICITORS

Far North Law (Kaitaia) for Plaintiff

(copy to Defendant in person)

PAIKEA V PAIKEA (AKA HOPKINS) HC WHA CIV 2005-488-000511  20 August 2008

[1]      On 15 April 2008 the plaintiff, Tania Paikea, applied to this Court for an order removing her sister, Vanessa Paikea, as a co-executrix and co-trustee in the estate of the late Turuhira Doris Rapira whose last will was dated 16 June 2002.

[2]      The  ground  for  the  application  is  that  Ms Vanessa  Paikea  has  failed consistently and materially to discharge her obligations.  An extensive affidavit has been sworn in support by Ms Tania Paikea.  I am satisfied that that affidavit provides the necessary factual foundation for the application.

[3]      The  proceeding  was  served  on  Ms  Vanessa  Paikea  on  10 June  2008. Subsequently she  instructed  counsel  in  Kaikohe.    He  corresponded  briefly with Ms Tania  Paikea’s  solicitors  but  on  8 July  advised  that  his  instructions  were withdrawn.

[4]      The application was called in this Court on 31 July 2008.  On that occasion Lang J adjourned the application for a half day fixture today.  Ms Murray, counsel for Ms Tania Paikea, was then optimistic that the parties would confer and reach agreement so that orders could be made by consent.  However, that optimism has not been satisfied.  Ms Vanessa Paikea has not co-operated with her sister or attempted to reach a resolution.   The proceeding was called at 10 am today but Ms Vanessa Paikea failed to appear.

[5]      I should note that Ms Vanessa Paikea has been living on the estate’s principal asset – a 60 acre farm property near Kohukohu – since the testator’s death.  She and her partner have failed to pay rates, to maintain the property, and to co-operate with Ms Tania Paikea in administering the estate.   Her failure to pay rates is of such a magnitude as to expose the estate to the risk of a forced sale of the farm by the rating authority.

[6]      It is plain that Ms Vanessa Paikea has also failed to care for cattle and other animals which have been on the property, not in the sense of ill-treatment but in failing to keep them properly fenced on the property.  As a result Ms Tania Paikea, in an updating affidavit on 8 August 2008, reports that cattle have frequently strayed

onto public roads where they present a risk to road users and a nuisance to neighbours.

[7]      Ms Tania Paikea’s second affidavit satisfies me that her sister had by then conceded that she should no longer remain in office as an executor or trustee in the late Mrs Rapira’s estate.  I am in no doubt that she has failed to discharge her duties to such an extent as to constitute misconduct.   I order that Ms Vanessa Paikea be removed as a trustee and executor in the estate of the late Turuhira Doris Rapira and that  Charlene  Joy Rapira,  another  sister  of the  two  parties,  be  appointed  as  an executor and trustee in the estate.

[8]      There will be no order as to costs.

Rhys Harrison J