Smith v Povey - [2020] NZHC 805

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2249

[2020] NZHC 805

UNDER Section 21 of the Administration Act 1969

IN THE MATTER

of an application to remove an administrator under the Court’s inherent jurisdiction

IN THE MATTER

of the Estate of Ethel Moudale Uluakiahoia (also known as Ethel Moudale Wade and

Ethel Moudale Povey)

BETWEEN

ROSIE SMITH and MARLENA SINAI KAU SOMA

Plaintiffs

AND

HELEN TUPOU POVEY

Defendant

Hearing: On the papers

Counsel:

R V Sami for the Plaintiffs

No appearance by or on behalf of the Defendant

Judgment:

24 April 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 24 April 2020 at 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Murdoch Price Ltd, Botany, Auckland Copy to: The Defendant

SMITH v POVEY [2020] NZHC 805 [24 April 2020]

Introduction

[1] The plaintiffs, Rosie Smith and Marlena Sinai Kau Soma and the defendant, Helen Tupou Povey, are the administrators of their mother’s estate (the estate). Ms Smith and Ms Soma apply for an order under s 21 of the Administration Act 1969 (the Act) removing Ms Povey as administrator and for an order for vacant possession of a residential property to enable the sale of the property.

[2] Ethel Moudale Uluakiahoia died without a will in Auckland on or about 5 January 1989, leaving 10 adult children as at that date (the siblings).1 She was a widow at the time of her death.

[3] Administration of the estate was granted to Ms Smith, Ms Soma and Ms Povey on 1 May 2008.

[4] In addition to the three administrators, the deceased’s living adult children are Bronwyn Trautvetter, Kingi Povey, Gary Steven Povey, Mary Bodija, Mardi Roberts and Vesinia Karaitiana. They were all served with the proceedings and have taken no steps.

[5] Ms Povey, acting on her own behalf, filed an affidavit on 26 November 2019 but did not file a statement of defence within the extended period granted to her. The claim was therefore set down for hearing by way of formal proof. With the consent of Mr Sami, counsel for Ms Smith and Ms Soma, I considered the application on the papers.

The estate

[6] The only asset of the estate is a residential property at 9 Pamir Road, Papatoetoe, Auckland (CT NA21A/1219) (the property). The property is mortgage free.

1 One of the deceased’s children, Thomas Povey, died on 23 October 1998.

[7] An on-line valuation report annexed to Ms Smith’s affidavit sworn 9 September 2019 provides an estimated selling range of $669,760 to $786,240 for the property. The capital value as at 1 July 2017 was $750,000.

[8] It is apparent from the certificate of title for the property that there is a statutory land charge registered against the title pursuant to s 125 of the Social Security Act 1964 which was registered on 27 May 1983. Ms Smith says any debt owing to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Povey

Details

AGLC: Smith v Povey [2020] NZHC 805
Case: [2020] NZHC 805
Decision Date: 24 April 2020

CaseChat Overview and Summary

Rosie Smith and Marlena Sinai Kau Soma sought an order for the removal of Helen Tupou Povey as an administrator of their mother's estate. The estate consists of a residential property which the parties had agreed to sell. The property is currently occupied by Ms Povey. Ms Smith and Ms Soma say that Ms Povey has delayed the administration of the estate and that she has not taken any steps to enable the sale of the property. They seek vacant possession of the property to enable the sale to proceed. The only issue before the court was whether the removal of Ms Povey as an administrator was expedient in the interests of the beneficiaries. The court found that Ms Povey had delayed the administration of the estate and that the lack of action had the potential to diminish the value of the estate. The court found that Ms Povey's removal would be a suitable, practicable and efficient means of advancing the interests of the estate and of its beneficiaries. The court found that an order for vacant possession should be made and ordered that Ms Povey vacate the property within 30 days of the New Zealand Government moving to Alert Level 2. The court found that costs and disbursements should be paid out of the estate.

Orders