Petherick v Petherick HC Wellington CIV-2011-485-1024

[2011] NZHC 1205

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1024

BETWEEN  GRAHAM DAVID PETHERICK EFSTATIOS COTSILINIS Plaintiffs

ANDSTEPHEN GRANT PETHERICK Defendant

Hearing:         3 October 2011

Counsel:         C Heaton for Plaintiffs

No appearance for Defendant

Judgment:      7 October 2011 at 4:00 PM

I direct the Registrar to endorse this judgment with a delivery time of 4 pm on the

7th day of October 2011.

REASONS FOR JUDGMENT OF MACKENZIE J

[1]      This is an application for judgment by default in this proceeding, in which the defendant has taken no steps.  I granted judgment when the matter was called in the Judges’ Chamber’s list on Monday, 3 October 2011, and indicated that my reasons would follow.

[2]      The proceeding is an application for removal of the defendant as an executor and trustee of the A V Petherick and E R Petherick Estates.  The application is made in reliance on s 21 of the Administration Act 1969.

[3]      The  relevant  background  is  set  out  in  the  affidavit  of  Mr G D Petherick (Graham), one of the plaintiffs and a trustee of both estates.  He is the brother of the defendant  (Stephen).    E  R  Petherick  was  their  father,  and  A V Petherick  their

grandfather.   The grandfather died in 1972 and the father in 2008.   The present

PETHERICK V PETHERICK HC WN CIV-2011-485-1024 7 October 2011

trustees of both estates are Graham, Stephen and Mr Cotsilinis, who is an accountant and  professional  trustee.    They  were  appointed  as  the  original  trustees  of  the E R Petherick estate under the will.   They were not the original executors of the A V Petherick  estate.    In 2009,  the then trustees  retired  and  appointed  Graham, Stephen and Mr Cotsilinis in their place.

[4]      Stephen’s present situation is described in some detail in Graham’s affidavit. In the interests of preserving Stephen’s privacy to the greatest extent possible, I do not propose to set out, in this judgment, the detail.  It is sufficient to record that I accept Graham’s evidence as contained in his affidavit dated 24 May 2011.  It is not challenged.  That evidence satisfies me, in terms of s 21 of the Administration Act

1969, that Stephen is incapable of acting as administrator or is unfit to so act.

[5]      Stephen has taken no steps in the proceeding, though the proceedings have been   served   upon   him,   as   deposed   in   the   affidavit   of   Mr Hansen   dated

22 September 2011.  It appears from that affidavit that, since Graham’s affidavit was

sworn, Stephen has returned to New Zealand.

[6]      It is important that at all times every estate is administered by persons who are able to carry out the duties of an administrator.   I am satisfied that Stephen should be removed from his position as an executor and trustee of both estates.

[7]      There will be an order accordingly.   Graham and Mr Cotsilinis are able to

continue in office so that it is unnecessary to appoint any person in Stephen’s place.

[8]      There will be an order for costs in favour of the plaintiffs, such costs to be payable as to one half from each of the estates.

“A D MacKenzie J”

Solicitors:         Morrison Kent, Wellington for Plaintiffs