Sullivan v Pullar - [2020] NZHC 2399

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2010-441-142

[2020] NZHC 2399

UNDER the Administration Act 1969

IN THE MATTER

of the Estate of Nan Rangitautiaki Sullivan

AND

IN THE MATTER

of an application to remove an administrator

BETWEEN

TE RANGIHIROA SULLIVAN

Applicant

AND

LOVIE HINERAUMOA PULLAR (NEE SULLIVAN)

Respondent

Hearing: On the papers

Appearances:

M J Wenley for the Applicant

Judgment:

16 September 2020

JUDGMENT OF COOKE J

[1]By application dated 16 July 2020 the applicant applies for orders:

(a)Removing the respondent as the administrator of the Estate of Nan Rangitautiaki Sullivan.

(b)In the alternative giving directions as to the completion of the administration of the Estate.

(c)The costs of and incidental to this proceeding.

SULLIVAN v PULLAR [2020] NZHC 2399 [16 September 2020]

[2] The application is supported by an affidavit from the applicant sworn 10 July 2020 and a memorandum of counsel in support of the application subsequently filed dated 7 September 2020.

Background

[3] The proceedings have a longer background. The applicant and respondent are two of the three remaining executors of their mother’s estate. An originating application was first filed dated 4 December 2018 where the applicant sought the removal of the respondent as executor, together with an application for an order to transfer title in the Estate’s principal asset, a house in Napier, to the continuing trustees. That application was opposed by the respondent. After a series of case management conferences and additional considerations (such as the service on beneficiaries) the matter went to a settlement conference before the Associate Judge. At that settlement conference consent orders were made on 8 August 2019 in the following terms:

(a)That Francis Paranihia Sullivan ("Francis") shall have the first option to be exercised and settled by 20 September 2019 to purchase the property at 8 Davidson Avenue, Napier for the sum of $445,000.00 (being the valuation of $465,000.00 obtained less an allowance of
$20,000.00 for agent's commission) and upon settlement Francis shall be entitled to a credit for his share in the Estate.

(b)That if such option shall not be exercised by 20 September 2019 then the property shall be placed on the open market to be sold for a minimum price of $450,000.00.

(c)That the Applicant Te Rangihiroa Sullivan shall be entitled to be reimbursed from the Estate the costs of this proceeding which shall be fixed at $6,325.00 (GST inclusive) together with disbursements of Court filing fees of $400.00, sealing fee $50.00, setting down fee
$640.00 and service fees of $201.25. He shall also be entitled to be reimbursed from the Estate for administration costs paid by him.

(d)That the Administrators shall co-operate and execute all documents reasonably required to fulfil the foregoing orders.

(e)That the Applicant is given leave to apply further. Subject to any such application, the proceeding is to be discontinued (without issue as to costs) upon the winding up of the Estate.

[4] The applicant explains in her affidavit that pursuant 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 Sullivan v Pullar

Details

AGLC: Sullivan v Pullar [2020] NZHC 2399
Case: [2020] NZHC 2399
Decision Date: 16 September 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, Te Rangihiroa Sullivan applied for the removal of Lovie Hineramoa Pullar (nee Sullivan) as the administrator of the estate of Nan Rangitautiaki Sullivan, who had passed away. The application was heard by Cooke J, who granted the applicant's request to remove Pullar from her position as administrator. Sullivan and Pullar were two of the three remaining executors of their mother's estate, which included a property in Napier. The court had to decide whether Pullar should be removed as the administrator due to her disagreement with Sullivan about the distribution of the estate funds. The court considered the statutory provisions, the interests of the beneficiaries, and the need for expediency in estate administration.

The court reviewed the relevant legal principles, including the factors established in previous cases such as Tod v Tod and Frickleton v Frickleton. The court emphasised that the primary focus was on the proper administration of the estate and the execution of trusts in the interests of the beneficiaries. The court noted that while the wishes of the testator, as evidenced by the appointment of a particular executor, were important, the primary consideration was the expedience in the interests of the beneficiaries. The court also recognised that hostility between administrators or trustees and beneficiaries was not, in itself, a reason for removal, but it would assume relevance if it risked prejudicing the interests of the beneficiaries.

Cooke J concluded that the disagreement between Sullivan and Pullar regarding the distribution of the estate funds had created a deadlock, and it was in the best interests of the beneficiaries to remove Pullar as administrator. The court granted the application to remove Pullar and directed that Sullivan and the remaining administrator, Erina Thrupp, could complete the distribution of the estate. The court also directed that the applicant's reasonable costs of the application could be met out of the assets of the estate.

Orders