Roblin v Roblin

[2021] NZHC 238

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-192

[2021] NZHC 238

UNDER

Section 21 Administration Act 1969, ss 51

and 64 Trustee Act 1956, Part 18 High Court Rules

IN THE MATTER

of an application for removal of trustee, appointment of independent trustee, or order for sale of trust property

BETWEEN

GRANT DALE ROBLIN

Plaintiff

AND

IAN STUART ROBLIN

Defendant

Hearing:	10 February 2021
Appearances:	D O’Neill and H Mills for the Plaintiff No appearance for the Defendant
Judgment:	22 February 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 22 February 2020 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Cooney Law, Cambridge

D M O’Neill, Barrister, Hamilton Copy to the Defendant

ROBLIN v ROBLIN [2021] NZHC 238 [22 February 2021]

[1]                 The parties are brothers who are in dispute over implementation of the will of their mother who died on 24 July 2017. The primary asset in the mother’s estate is her house at 16 Sutton Crescent, Hillcrest, Hamilton.

[2]                 In a judgment delivered by me on 7 March 2019 the defendant, Ian Roblin, was removed as a trustee and replaced by Peter Joseph Fanning of Hamilton, solicitor.1 In making the removal order I said inter alia:

{38]     I am satisfied on the basis of the above authorities that this is a clear case where Ian Roblin needs to be removed as a trustee.

[39]      The differences between himself and Grant Roblin go beyond mere incompatibility.

[40]      Ian Roblin is refusing to co-operate or even to take part in finalising the administration of the estate. This applies particularly in terms of progressing a sale of the Hillcrest property, whether to himself or otherwise. It has now been 17 months since the grant of probate and no progress has been made, despite reasonable efforts on the part of Grant Roblin and the solicitors for the estate. That must disqualify Ian from continuing involvement as a trustee.

[41]      Further, even in terms of day-to-day management of the property, Ian Roblin’s actions generally, especially with regard to unilaterally allowing people to occupy the middle floor, are in conflict with his duty as a trustee.

[42]      The trust is therefore not only hamstrung, but Ian Roblin has misconducted himself in his role as a trustee.

[3]                 As part of that earlier application the plaintiff, Grant Roblin, had also sought an order for sale of the Hamilton property. It was agreed an order was not then necessary as the trustees were entitled to proceed as they saw fit. I reserved leave to seek further orders if required.

[4]                 The plaintiff now seeks further orders regarding or related to implementation of a sale. Although Mr Fanning is not a named plaintiff he has endorsed his consent to the application. Further affidavit evidence has been filed by the plaintiff and Raymond Mitchell, real estate agent, who has been to the property and met Ian Roblin. They also gave viva voce evidence.

1      Roblin v Roblin [2019] NZHC 374.

[5]                 To summarise, since my 7 March 2019 judgment there has been little, if any, progress in the estate. The plaintiff remains of the view that the property needs to be sold so that the parties can move on. There have been suggestions going back some time now that Ian Roblin purchase the property from the estate but that has not happened. I was concerned to perhaps make yet further allowance for Ian to buy out Grant’s share but am entirely persuaded on the evidence that he has had ample opportunity to do so and even more importantly that the sort of finance that would be required would not be available to him.

[6]                 I am also satisfied that Ian has obstructed and will obstruct attempts to list the property for sale and that his actions are likely to lower the sale price of the property and/or deter purchasers. These include:

(a)allowing random people whom Grant describes as “undesirables” to come and go at the property including during the night;

(b)breaking of windows and causing other damage either by himself or via his “guests”; and

(c)leaving large amounts of junk around the property such that the presentation of the property is described by Mr Mitchell as at the worst end, and it is not possible to move freely around it.

[7]                 Grant Roblin says he has previously fixed broken windows but three more have been smashed. He has also brought skip bins in and removed a lot of rubbish but more junk has since been added by Ian and/or his guests. Grant says also that Ian’s behaviour is unpredictable. After Ian was served with the current application he had an outburst in which he threatened to put Grant in hospital for the rest of his life.

[8]The evidence of Mr Mitchell is that the property is worth somewhere between

$600,000 and $800,000 and probably at the top end of that range, but that the sale price will be negatively affected if it is not better presented, and so would his ability to show people through if Ian remains there.

Relevant Law

[9]Section 64 of the Trustee Act 1956 relevantly provides as follows:

64 Power of Court to authorise dealings with trust property and variations of trust

(1) Subject to any contrary intention expressed in the instrument (if any) creating the trust, where in the opinion of the Court any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, retention, expenditure, or other transaction is expedient in the management or administration of any property vested in a trustee, or would be in the best interests of the persons beneficially interested under the trust, but it is inexpedient or difficult or impracticable to effect the same without the assistance of the Court, or the same cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument (if any) or by law, the Court may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions (if any) as the Court may think fit, and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne, and as to the incidence thereof between capital and income:

Provided that, notwithstanding anything to the contrary in the instrument (if any) creating the trust, the Court, in proceedings in which all trustees and persons who are or may be interested are parties or are represented or consent to the order, may make such an order and may give such directions as it thinks fit to the trustee in respect of the exercise of any power conferred by the order.] …..

(4) An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

[10]              The Court has express jurisdiction under s 64 to make an order for sale and related orders providing that is not contrary to the instrument creating the trust. I do not consider there is power under s 64 to make an order removing an occupant from a property to be sold, but consider there is inherent jurisdiction in this Court to ensure its orders are given effect, including jurisdiction to order eviction where necessary to achieve a sale.2

Discussion

[11]              As the plaintiff fairly points out it may not be safe to conclude that a sale is in the interests of the beneficiaries in terms of s 64(1), given one of them clearly does not consider it in his interests. Nonetheless I am satisfied that a sale is expedient in the

2      Official Assignee v Mathiesen [2018] NZAR 623; [2018] NZHC 843; Sillick.v Sillick [2020] NZHC 282, at [21]. I note the circumstances were somewhat stronger in the former case, but the same principle applies.

management or administration of the property that is vested in the trustees, and that it is inexpedient or difficult or impracticable to effect the sale without assistance of the Court. There is no contrary provision in the will.

[12]              Further, I am satisfied that Ian may obstruct the sale process if he is allowed to remain at the property and/or his actions are likely to negatively affect the sale price or even prevent the sale from occurring. I also consider it most unlikely that he will voluntarily leave. In those circumstances I have jurisdiction not only to make directions relating specifically to the sale but also an inherent jurisdiction to evict Ian and his “guests” from the property if he and/or they fail to give over vacant possession by a prescribed date.3

[13]              I am also satisfied that reimbursement by Ian of some of the expenses incurred or likely to be incurred, and payment of costs orders, would be highly unlikely to happen without a court order, given the lack of co-operation by him to date.

[14]              I rely on the matters referred to in my earlier judgment but also on the further evidence from the plaintiff and from Mr Mitchell as set out in part.

[15]              I therefore make orders largely in the terms sought by the plaintiff in his counsel’s memorandum being as follows:

(a)16 Sutton Crescent, Hillcrest, Hamilton is to be sold;

(b)The defendant and any other persons (identity unknown) in occupation of the property are to give vacant possession of the property to the plaintiff on or before 5:00 pm on Wednesday, 17 March 2020;

(c)If the defendant and/or any other person in occupation of the property fails to comply with the order in (b) above, the Sheriff at Hamilton, or the Sheriff’s duly authorised agent/agents, together with any serving police officer, are authorised to:

3 Above n 2 at [21].

(i)Enter the property and/or use such force to enter the property as may be reasonably necessary;

(ii)Remove the defendant and any other persons in occupation of the property from the property and use reasonable force as may be reasonably necessary to do so;

(iii)Remove, or have removed, by agents duly authorised or appointed for that purpose, any personal possessions of the defendant and any other person in occupation of the property to such other address as the defendant or other person may nominate or, failing the provision of such address, such storage facility as the agent may reasonably nominate;

(d)Mr Raymond Mitchell, real estate agent, shall be permitted access to the property for the purpose of inspecting the same and to fully report on the inspection to the plaintiff and Peter Joseph Fanning (the trustees);

(e)the trustees are to consider and, providing they both agree, implement the advice of the real estate agent as to the nature and extent of the marketing to be undertaken, the mode of sale of the property and what is reasonably required to tidy, repair and best present the property for sale;

(f)the proceeds of sale are to be applied to repay:

(i)any sum due under a mortgage;

(ii)all sums borrowed by the Trust (if any) to effect the sale of the property, including preparing the property for sale;

(iii)the conveyancing and legal costs of the sale;

(iv)holding costs;

(v)remaining debts of the Trust (if any);

(vi)reimbursement to the plaintiff of any rates, insurance payments and other outgoings that have been met solely by him rather than paid equally by the parties;

(vii)commission fees to the real estate agent.

(g)The net sale proceeds are to be divided in half. The following amounts shall be deducted from the share of sale proceeds otherwise due to the defendant and shall be paid to the plaintiff:

(i)the costs awarded following my judgment dated 27 March 2019 of $16,715.20;

(ii)costs awarded to the plaintiff under this judgment which I hereby fix on a 2B scale;

(iii)any costs incurred in implementing the orders set out at (c).

(h)Leave is reserved to the parties to refer back to this Court should any further amended orders or directions be required to give effect to these orders or any previous order of the Court.

[16]              I have not made an order that Ian be solely liable for any repairs and tidying up costs that he has brought about, as such an order was not sought.

[17]              I am conscious there will be a gap between Ian’s having to leave the property and his receipt of funds from a sale. I was concerned as to how he would house himself in the interim and whether some interim funds should be made available. However, Mr Mitchell tells me that the relevant timeframe is very short. In the current market the property is likely to sell within about two weeks and settlement would be two to four weeks later. Also Grant’s evidence is that the parties each received $80,000 -

$90,000 several years ago. Ian is likely therefore to still have available funds. Furthermore, the estate itself now has very little cash.

[18]              For completeness, I note I consider it necessary that Grant Roblin remain in the property for security reasons, and to otherwise facilitate the sale.

Hinton J