Smith v Smith

[2021] NZHC 1489

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2019-454-38

[2021] NZHC 1489

BETWEEN

THOMAS MICHAEL SMITH

Plaintiff

AND

PAUL KENNETH SMITH

Defendant

Hearing:	On the papers
Appearances:	D P O’Neill for plaintiff Defendant in person
Judgment:	22 June 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                My interim judgment in this matter dated 11 May 2021 concluded:

[34]      I have reached the view that Thomas is entitled to summary judgment for an order removing Paul as executor and trustee of this estate and appointing an alternative — and completely independent — administrator to replace him.

[35]      As already said, Mr Thomas Smith proposes Mr Rowan. I am informed that Mr Rowan is willing to accept appointment and is an experienced estate administrator.

[36]      The difficulty is that the Court does not have a written statement from Mr Rowan of his willingness to accept appointment or the terms upon which he would be prepared to do so, and nor does the Court have any information (from the evidence as it stands) as to Mr Rowan’s experience.

[37]      In the circumstances, it appears to me that the pragmatic course is to issue this interim judgment directing  Mr  Thomas  Smith  to  arrange  for  Mr Rowan, within 15 working days of the date hereof, to file formal notification of:

(a)his preparedness to accept appointment;

SMITH v SMITH [2021] NZHC 1489 [22 June 2021]

(b)the terms upon which he proposes he should be appointed;

(c)comprehensive information as to his background and relevant experience.

[38]      On receipt of that material, and assuming that it is satisfactory, a final judgment will follow, removing Mr Paul Smith as the executor and trustee of the estate of the late Mrs Veronica Smith and appointing Mr Douglas Rowan to replace him.

[39]      This judgment is not to be sealed until such time as that material is to hand and a minute has been issued directing the Registrar to permit sealing.

[2]                I now have an affidavit sworn by Mr Douglas Rowan outlining his experience in estate administration and proposing the basis upon which his firm would charge for services in this matter. I regard that as satisfactory in all respects, and accordingly enter summary judgment on the terms foreshadowed in my earlier judgment removing Mr Paul Smith as the executor and trustee of this estate and appointing Mr Douglas Rowan to replace him on the terms recorded in his affidavit sworn on 27 May 2021.

[3]                In my interim judgment I reserved costs. Mr Thomas Smith as the successful party in the litigation seeks a costs award in the sum of $16,044.25, that being substantially less than costs calculated on a 2B basis but being the amount of the costs charged by Mr Thomas Smith’s solicitors to the legal aid authorities pursuant to a grant of legal aid which of course will be recoverable by those authorities from Mr Thomas Smith in due course.

[4]                Although Mr Paul Smith has filed a considerable body of material in which he says he is “responding” to my interim judgment, and addressed costs, there is nothing in his memorandum of 18 June 2021 that dissuades me from making the above orders.

Associate Judge Johnston

Solicitors:
Todd Whitehouse Solicitors, Levin for plaintiff