Stanbredge v Paku

[2023] NZHC 2604

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2023-416-001

[2023] NZHC 2604

UNDER

Application for grant of administration de bonis non administratis (de bonis non) and/or sections 5 and 21 of the

Administration Act 1969 and/or sections 51,
112 and 114 of the Trusts Act 2019

IN THE MATTER

of the Estate ANNIE DOROTHY CHESLEY also known as ONA CHESLEY

BETWEEN

GRAEME GEORGE STANBRIDGE and VANESSA ANNE STANBRIDGE

Plaintiffs

AND

JENNIFER LORRAINE PAKU, also known as JENNIFER LORRANE PAKU (deceased) as Executrix in the ESTATE OF ANNIE DOROTHY CHESLEY also known as ONA CHESLEY

Defendant

Hearing:	14 September 2023
Appearances:	M P Ward-Johnson for Plaintiffs
Judgment:	19 September 2023

JUDGMENT OF CHURCHMAN J

[1]    The plaintiffs seek an order under s 21 of the Administration Act 1969 (the Act) discharging and removing the administrator, the late Jennifer Lorraine Paku, also known as Jennifer Lorrane Paku (Ms Paku), of the estate of the late Annie Dorothy Chesley, also known as Ona Chesley (the deceased). Section 21 of the Act permits the

STANBRIDGE v PAKU [2023] NZHC 2604 [19 September 2023]

Court to discharge an administrator where it becomes expedient to discharge and remove them.

[2]    The plaintiffs also refer to s 112 of the Trusts Act 2019, which authorises the Court, where it is necessary or desirable, to remove a trustee in circumstances where it is difficult or impracticable to do so without the assistance of the Court. However, I note that s 114 of the Trusts Act does not empower the Court to appoint an executor or administrator. Therefore the plaintiffs’ reliance on this section is misplaced.1

[3]    Of more relevance is the case law in relation to grants of administration de bonis non administratis (de bonis non).

The facts

[4]    The deceased died on or about 3 July 1977. At the date of her death, the deceased owned various blocks of Māori land and also owned 56.816 out of a total 365 shares in a block of land that had previously been Māori land but had become freehold land on 26 March 1971. The block of land in question was 7.2236 hectares in size and described as Wharekahika C39 Block on Identifier GS3C/846 Gisborne Registry (the property). Two other shareholders (including the plaintiffs in these proceedings) owned the balance of the shares in the property. As at the date of the deceased’s death the property was not subdivided and therefore the deceased’s ownership interest was as to an undivided share in the whole block in proportion to her shareholding of the total number of shares.

[5]    Ms Paku partially administered the estate, and the deceased’s interests in the various Māori land titles were transferred to the beneficiaries named in the deceased’s will on or about 27 January 1999. However, the deceased’s interest in the property was never dealt with, with the result that the interest remains in the name of the deceased.

[6]Ms Paku died on or about 1 May 2017.

1      See Trusts Act 2019, s 114(2).

[7]    The sole surviving named beneficiary of the deceased’s estate is Nuku Tawhiti Chesley, named as Nuku Hiohiowhai Chesley in the deceased’s will. He was a beneficiary of the deceased’s Māori land interests, not the property.

[8]    The deceased’s last will bequeathed her interests in Māori land to certain named beneficiaries and directed her executor to hold the residue of her estate for  Ms Paku, who was described as being her foster daughter.

[9]    Between 1992 and 2004 the two owners of the majority of the shares in the property developed it. Although the property was not formally subdivided, nine independent lots were developed, most of which had a dwelling erected on them. Part of the land was set aside for the benefit of the deceased. That is known as Lot H.

[10]   The plaintiffs cannot complete the subdivision project until such time as the administration of the deceased’s estate is completed and the deceased’s share in the property transferred to the beneficiary under her will.

[11]   As a result of service directions made by the Court, the former de facto partner of Ms Paku was served. It was then discovered that Ms Paku had two sons, Jimmy Epera Paku (Jimmy) and Teura Llewellyn Matua (Teura). They were also served.

[12]   There is no evidence that Ms Paku ever made a will and the matter has to be approached on the basis that she died intestate. In that case a grant of administration de bonis non is required.2

The application

[13]   After service in accordance with the Court’s directions only one party, Alice Lorraine  McClutchie,  has   filed   a   notice   of   appearance   reserving   rights.   Ms McClutchie was one of the beneficial owners of Lot D in the proposed subdivision of the property.

2      See W M Patterson Laws of New Zealand Administration of Estates Vol I (online ed) at [151]: “Where a sole or last surviving executor dies intestate without having fully administered the … estate, the deceased executor’s administrator does not become the representative of the original testator.”

[14]   The sole surviving beneficiary of the deceased’s will, Nuku Chesley, has filed an affidavit confirming that the deceased was his uncle’s widow and that to the best of his knowledge, his uncle and the deceased did not have children together and his uncle described Ms Paku as his step-daughter. Nuku Chesley confirmed that the Māori land interests referred to in the deceased’s will had been transferred to him and his siblings.

[15]   The application proceeded before me on 14 September 2023. Although all those who had been directed to be served were notified of the hearing date, none sought to participate in the hearing. Having heard Mr Ward-Johnson in support of the application, I have come to the following conclusions.

(a)Ms Paku failed to complete the administration of the estate of the deceased in that she did not transfer the property to herself as beneficiary.

(b)She appears to have died intestate.

(c)An application for de bonis non is therefore required.

(d)In terms of s 6(2)(a) of the Act, it is expedient to grant administration of the estate of the deceased to Perpetual Trust Ltd.

(e)Perpetual Trust Ltd will then be able to transfer the deceased’s interest in the property to Ms Paku in accordance with the deceased’s will.

(f)On an intestacy, Ms Paku’s two sons, Jimmy and Teura, would appear to be entitled to a transfer to them in equal shares of the deceased’s 56.816 shares in the undivided whole of the property.

(g)It is not for the Court on this application to confirm that the proposed Lot H accurately and fairly represents the deceased’s interest in the property. That will be a matter for confirmation between the plaintiffs and the beneficiaries in Ms Paku’s estate.

Formal orders

[16]I hereby make orders:

(a)Discharging or removing the late Jennifer Lorraine Paku as executor in the estate of the late Annie Dorothy Chesley, also known as Ona Chesley, and grant letters of administration with will annexed de bonis non to Perpetual Trust Ltd.

(b)The reasonable costs, including solicitor and client fees, of Perpetual Trust Ltd in relation to the administration of the estate shall be a first charge on the deceased’s estate.

(c)The plaintiffs’ reasonable solicitor and client costs of and relating to this proceeding shall be a charge on the deceased’s estate, ranking behind the administrator’s own fees of administration but before any distribution of the estate and shall be paid by the deceased’s estate.

Churchman J

Solicitors:

Buddle Bentley McCleary, Whakatane, for Plaintiffs