Parker

[2012] NZHC 569

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1647 [2012] NZHC 569

IN THE MATTER OF     the Administration Act 1969 the Trustee Act 1956

AND

IN THE MATTER OF      THE ESTATE OF IAN REX PARKER

ALAN REX PARKER AND MURRAY CHARLES PARKER

Applicants

Hearing:         (On the papers) Judgment:       28 March 2012

JUDGMENT OF BREWER J

SOLICITORS

Town and Country Law (Wellsford) for Applicants

The Estate of Ian Rex PARKER HC AK CIV-2012-404-1647 [28 March 2012]

[1]      By interlocutory application without notice for permission to proceed by way of originating application dated 26 March 2012, the applicants seek to commence a proceeding for their removal as executors and administrators of the estate of their late father.

[2]      Each of the applicants has filed an affidavit in support of their application to be removed as executors and administrators.  The more extensive is that of Alan Rex Parker (with which the other applicant, Murray Charles Parker, concurs).

[3]      The situation is that the applicants, who are brothers, cannot agree on how the estate of their late father should be administered.  The applicants are beneficiaries of the estate, as are their two sisters. All are adults. All take under the will of their late father equally.

[4]      The applicants seek to be removed from their responsibilities in the estate of their late father and to have Mr Matthew Joseph Koppens of Warkworth, barrister, appointed as sole executor and administrator in their place.  The written consents of the sisters are annexed to the affidavit of Alan Rex Parker.   There is a helpful memorandum of counsel setting out the background and vouching for Mr Koppens.

[5]      Mr  Koppens  consents  to  the  appointment,  noting  that  he  would  require authority to charge his usual fees as a barrister as if he were engaged in his professional capacity and not as a trustee.  This stipulation is specifically noted and agreed to by the applicants.

[6]      In these circumstances, I am prepared to exercise my discretion under s 51 of the Trustee Act 1956 to grant the application.  Accordingly, permission is given to the applicants to proceed by way of originating application.   The application is granted.  I make orders in the form of the draft order filed with the application and listed as document 8 on the Court file.

[7]      I direct that the reasonable costs of the applicants on this application be paid

out of the funds of the estate.

Brewer J