Tiatia v Stanley

[2019] NZHC 2908

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-417

[2019] NZHC 2908

BETWEEN

MIKA TIATIA

Plaintiff

AND

MAPU STANLEY, MAIMA STANLEY and FOLA STANLEY

Defendants

Hearing:	7 November 2019
Counsel:	G W D Manktelow for Plaintiff No appearance for Defendants
Judgment:	7 November 2019

JUDGMENT OF CHURCHMAN J

[1]    The plaintiff and the defendants in this matter are the children of the late Afoa Alec Stanley (the deceased) who passed away in July 2017 without leaving a will. The major asset in his estate is a residential property in Stokes Valley (the property), presently occupied rent-free by the three defendants.

[2]    Michael Basil-Jones, a solicitor, was granted administration of the deceased’s estate by order of the Court dated 27 March 2018. He is soon to retire and wishes to be discharged as administrator of the deceased’s estate. Another solicitor, John Anthony Langford has agreed to act as administrator in his place, and has sworn and filed an affidavit consenting to the appointment and agreeing to do so in accordance with the law.

[3]    While this would normally be a fairly simple process, with the interested parties in the estate simply agreeing on a replacement executor and executing an

TIATIA v STANLEY & ORS [2019] NZHC 2908 [7 November 2019]

appropriate deed, the situation here is not quite so straightforward. In February 2019, when Guy Manktelow, the plaintiff’s solicitor, informed Craig Foster, the solicitor representing the defendants, of the plaintiff’s desire to have Mr Langford appointed as replacement executor, Mr Foster stated that he would need to take instructions from them about the proposed change and would get back to him as soon as possible. There has, however, been no further response since then, other than an email acknowledging service of these proceedings. Because the three defendants are occupying the property rent-free, it would appear to be in their interests to delay resolution of this matter.

[4]    I am satisfied that each of the defendants has had the existence of this application brought to their attention. There is an affidavit of service from Gail Harris confirming service of the proceedings on Maima Stanley and Fola Stanley at the property on 31 July  2019,  and  an  affidavit  from  Lynley  Elizabeth  Sinclair  of  16 September 2017, exhibiting correspondence between Craig Foster (the solicitor for all three defendants) confirming that Mapu Stanley was aware of the proceedings and that she did not need them to be advertised.

[5]    Despite being served with these proceedings, the defendants have taken no steps in relation to them and the matter therefore proceeded before me on 7 November 2019 by way of formal proof.1

[6]    The plaintiff filed a statement of claim dated 20 July 2019 seeking an order removing Mr Basil-Jones as administrator of the estate and appointing Mr Langford in his place under s 21(1) of the Administration Act 1969 which relevantly provides:

21       Discharge or removal of administrator

(1)Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.

1      High Court Rules, r 15.9.

(2)The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3)Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1)) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or she or they had been originally appointed as the administrator or administrators.

[7]    In the interests of seeing this estate properly administered, I consider it expedient to order that Mr Basil-Jones be removed as administrator and Mr Langford be appointed in his stead. Mr Langford’s usual professional and other charges incurred in the administration of the estate are to be paid out of the estate.

[8]    The plaintiff’s costs and disbursements incidental to these proceedings are also to be paid out of the estate.

Churchman J

Solicitors:
G W D Manktelow, Lower Hutt