Poraurangi-Kapa v Hopkins
[2022] NZHC 3474
•16 December 2022
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2021-441-19
[2022] NZHC 3474
UNDER section 133 of the Trusts Act 2019, the Court’s inherent jurisdiction, and Part 18 of the High Court Rules 2016 IN THE MATTER
of the estate of Joseph Nepata Hopkins
BETWEEN
JOANNE HIRAINA JUNE PORAURANGI- KAPA
Plaintiff
AND
JAMES HENRY WARREN HOPKINS
First Defendant
NOVA WAIMARIE KAREN HOPKINS
Second DefendantDEBORAH MAKARITA JANINE HOPKINS
Third Defendant
Hearing: 19 September, 5 and 12 December 2022 Counsel:
P C Murray for the Plaintiff
Judgment:
16 December 2022
JUDGMENT OF COOKE J
[1] By amended statement of claim dated 25 November 2022, the plaintiff seeks certain orders and directions in relation to her father’s estate.
[2] After service of the statement of claim, the proceedings were set down for a formal proof hearing before me under r 15.9 of the High Court Rules 2016. The plaintiff filed an affidavit sworn 16 September 2022 describing the circumstances.
PORAURANGI-KAPA v HOPKINS [2022] NZHC 3474 [16 December 2022]
The hearing proceeded before me on 19 September 2022. At that stage I adjourned the proceedings, indicating there might be a need for the plaintiff to amend her statement of claim. It is this that has led to the amended statement of claim dated 25 November 2022.
[3] The proceedings were again called before me on Monday, 5 December 2022. At that stage, although there had been unsuccessful discussions between the parties, the second defendant had not been served with the amended statement of claim and I adjourned the application until Monday, 12 December 2022, indicating that if there was no opposition I would determine the application based on the written and oral submissions that have been provided. There was no appearance opposing the application on 12 December 2022. In those circumstances, it is appropriate for me to determine the application as indicated. Affidavits of service confirming service of the amended statement of claim and my minute of 5 December have now been filed.
Formal proof
[4] The proceedings were first listed for formal proof under r 15.9. I do not consider the formal proof procedure to be appropriate for this kind of application. The application seeks certain orders and directions from the Court under the Administration Act 1969 and the Trusts Act 2019. The Court is exercising its supervisory jurisdiction, and exercising a discretion in relation to making orders and issuing directions. As such, the formal proof procedure is not appropriate. It is not simply a matter of granting the plaintiff’s application for judgment after receiving evidence that establishes the causes of action advanced which is what the formal proof procedure is directed to. The current application is of a different kind. The Court is considering such applications on an unopposed basis. The Court must evaluate the case and make an assessment of what orders and directions are appropriate.
[5] This is reflected in the rules. Applications of this kind are dealt with under Pt 18 of the High Court Rules. Under rr 18.4 to 18.15 specific procedures are contemplated for determination of applications under that part, including the requirement to make an application for directions under r 18.4(1)(b). It is through these rules that the appropriate procedures for any opposition to such applications are
to be found, including rules that regulate if and how applications can be opposed in r 18.12. In the present case, I have effectively managed the proceedings by that kind of approach.
The facts
[6] Joseph Nepata Hopkins died on 11 February 2018. He had a will, and probate was granted in common form on 5 June 2018 (under CIV-2018-485-606449). The plaintiff and second defendant were his executors. Under the terms of that will, after meeting all relevant expenses, the estate was distributed to the Joseph Hopkins Whānau Trust (the Trust), a trust to be constituted under s 214 of the Te Ture Whenua Maori Act 1993.
[7] That Trust was established by the Māori Land Court by order of 30 October 2019. One particular property at 8 Rochester Street, Tamatea, Napier (identifier HBD2/1044) (the Property) did not qualify as property able to be settled in a whānau trust. Accordingly the Court did not order this property to be vested in the Trust. It is the Property that is the focus of this proceeding.
[8] The second defendant lived at the Property before and after Joseph Hopkins’ death. It appears that the rates, utility bills and insurance were not paid. It is also apparent that mortgage repayments were, and are, in arrears. The plaintiff formed the view that the Property needed to be sold but the second defendant disagreed. For a period the Property was rented, and some payments were made, but the mortgage still remains in arrears, and the Property is in disrepair.
[9] The plaintiff and the second defendant are now in deadlock. It is against that background that the applications are made to the Court by the plaintiff.
Grant of letters of administration on partial intestacy
[10] The plaintiff first seeks an order that letters of administration be granted to her to administer that part of the estate that is intestate, namely the part relating to the Property.
[11] I am satisfied that the Property could not be settled in the Trust by virtue of s 214 of the Te Ture Whenua Maori Act as it was merely general land, and does not meet the categories of land that may be settled on a trust under the Act, including because it is not general land owned by Māori under s 129(2)(c).
[12] It follows that that part of Mr Hopkins’ will in relation to the Property was ineffective. That part of Mr Hopkins’ estate must be dealt with as an intestate estate. In those circumstances, s 77 of the Administration Act regulates who receives the benefit of this Property. Section 79(1) provides that the provisions of that Act have effect in respect of a partial intestacy.
[13] Under the will the plaintiff and the second defendant were named as executors. The plaintiff seeks an order that she be the sole administrator of the intestate estate. Section 21 of the Administration Act provides:
21 Discharge or removal of administrator
(1)Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.
(2)The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.
(3)Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1)) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or she or they had been originally appointed as the administrator or administrators.
(4)This section shall, with all necessary modifications, extend to the case where an administrator dies, and the powers and authorities hereby conferred may be exercised and shall take effect accordingly.
(5)Nothing in this section shall restrict section 8.
[14] The proper approach to this section was outlined by the Court of Appeal in Tod v Tod1 and Frickleton v Frickleton.2 Both decisions adopt the approach set out by Heath J in Farquhar v Nunns who said:3
(a)The starting point is the Court’s duty to see estates properly administered and trusts properly executed.
(b)This jurisdiction involves a large discretion which is heavily fact- dependent.
(c)The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration, but ultimately the question is as to what is expedient in the interests of the beneficiaries.
(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.
(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.
(f)The principles for the exercise of the Court’s discretion are the same, whether an application is made pursuant to s 51 of the 1956 Act or s 21 of the 1969 Act.
[15]The interests of the beneficiaries must always be the ultimate focus.4
[16] In the circumstances of this case, I am satisfied that it is appropriate to make orders granting letters of administration solely to the plaintiff, and to the extent necessary to remove the second defendant as administrator under this section. Although Mr Hopkins named the second defendant as joint executor, the position has not been appropriately managed and the interests of all the beneficiaries now require the plaintiff to be sole executor. The orders sought are duly made.
1 Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145.
2 Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154.
3 Farquhar v Nunns [2013] NZHC 1670 at [13] (footnotes omitted).
4 Frickleton v Frickleton, above n 2, at [33].
Directions
[17] The plaintiff also seeks directions under s 133 of the Trusts Act, which prescribes that a trustee may apply to the court for directions about the trust property,5 that:
(a)the Property be sold;
(b)the costs of sale, and amounts due on the mortgage, and any other debts be paid; and
(c)the balance be paid to the deceased’s four children in equal shares.
[18] The power of the Court to give directions under s 133 is expressed in the same terms as the former s 66 of the Trustee Act 1956. In Chambers v S R Hamilton Corporate Trustee Ltd, the Court of Appeal confirmed that the High Court’s jurisdiction under this power is a broad one.6 The Court agreed with the observations of Kós J in New Zealand Māori Council v Foulkes that the section is an enactment of the broad equitable jurisdiction.7 Although it is sometimes said that there are four main categories of case where directions are appropriate, I do not apprehend it is necessary to bring a case within the four categories provided that the exercise of the jurisdiction is appropriate in the particular case.8
[19] In the present case, the orders I have already made above have the effect of appointing the plaintiff as the sole administrator of the intestate estate relating to the Property so that it may be sold and the proceeds distributed in the manner proposed. In those circumstances, it does not seem to me to be necessary for the Court to give further directions. The other parties have been served and the proposed course of action is unopposed. There was previously a deadlock between the plaintiff and the second defendant but that deadlock is resolved by the orders already made. I
5 Trusts Act 2019, s 133(1)(a).
6 Chambers v S R Hamilton Corporate Trustee [2017] NZCA 131, [2017] NZAR 882 at [32].
7 At [32]; New Zealand Māori Council v Foulkes [2014] NZHC 1777, [2015] NZAR 1441 at [44]– [50].
8 The existence of the four categories was explained in Re PV Trust Services Ltd [2017] NZHC 2957.
nevertheless reserve leave for the plaintiff to apply for further directions should there be a change of circumstances that makes such directions necessary.
Cooke J
Solicitors/Counsel:
P C Murray, Auckland for plaintiff
0
6
0