van Rijn v van Ryn

[2022] NZHC 2498

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1279

[2022] NZHC 2498

IN THE ESTATE

Of ANNA MARIA VAN RIJN, also known as ANNA MARIA LAFLEUR

BETWEEN

FRANCIS EVERARDUS MARIE VAN RIJN, RENE TITUS MARIE VAN RYN, and SIMON JOHN OLDBURY JONES

Plaintiffs

AND

MARIETTE MARIA BERNADETTE VAN RYN

First Defendant

ROSITA ANTOINETTE ALIDA MARIA MURRAY

Second Defendant

SASKIA ROBINA MARIA VAN RYN
Third Defendant

ANTONIA LIDWINA MARIA BYNEVELT

Fourth Defendant

Hearing:

24 August 2022

Appearances:

S A Grant for the Plaintiffs

J G Miles QC for the Defendants
R C Woods for the current executors

Judgment:

30 September 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 30 September 2022 at 10 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

VAN RIJN V VAN RYN [2022] NZHC 2498 [30 September 2022]

[1]                  The defendants have applied for the removal of the current executors of the estate of Anna Maria van Rijn (“Mrs van Rijn”), Jeremy Goodwin and Jeffrey Meltzer (“the current executors”), and for them to be replaced by Catherine Atchison, Barrister and Solicitor of Auckland.

[2]                  The application is not opposed. The current executors abide the decision of the Court, although they have noted their familiarity with the issues and question the utility of a change in executor at a relatively late stage. The plaintiffs’ position is not known: Mrs Grant appeared when the application was called and remains counsel on the record but had no instructions and it was indeed unclear at the date of the hearing whether her instructing solicitors had made the plaintiffs aware of the application which had been served on them. Obviously, since the hearing there has been additional time for Mrs Grant and/or her instructing solicitor to inform the plaintiffs of the application and/or to seek instructions but no steps have been taken by the plaintiffs in the interim.

Background

[3]                  After a dispute arose as to who were the appropriate executors of the estate of Mrs van Rijn, the current executors were appointed by consent, following a mediation in November 2020.

[4]                  Since their appointment the principal assets of the estate have been realised and an interim distribution of $600,000 was made to each of the beneficiaries, Mrs van Rijn’s seven children, in May 2021. The estate has not been finalised however. Various issues have been raised by the defendants (being the four daughters of Mrs van Rijn) in respect of possible debts owed to  the  estate  by  Francis  van  Rijn  and Rene van Ryn (“the plaintiff brothers”) (two of Mrs van Rijn’s three sons, and two of the original executors under the 2019 will).

[5]                  It is how the current executors have dealt with those issues and the time that has been taken to date that forms the basis for the present application.

The application to remove the current executors

[6]                  The defendants initially applied for the replacement of the current executors on the basis that despite a number of requests for information, only limited information had been forthcoming since the interim distribution and in particular no update had been provided in relation to the issues raised by the defendants with regard to possible debts owed by the plaintiff brothers to the estate.

[7]                  In response to the application, the current executors, through an affidavit sworn by Mr Goodwin on 22 August 2022, have not only provided a report on the administration of the estate but have for the first time provided copies of responses provided by the plaintiff brothers to the issues raised by the defendants, which show that the plaintiff brothers not only responded to the matters raised by the defendants, but have in turn raised serious issues against the defendants.

[8]                  In Mr Miles’ submission on behalf of the defendants, it is this latter correspondence that has led to a fundamental and irremediable loss of confidence by the defendants in the current executors because it reveals that:

(a)the current executors wrote to the plaintiff brothers on 8 September 2021 seeking response to the initial issues raised by the defendants;

(b)the plaintiff brothers responded on 22 October 2021 and in the course of that response themselves raised serious issues with regard to at least two of the defendants;

(c)other than informing the beneficiaries on 13 December 2021 that a response had been received from the plaintiff brothers and that response was “still under review by the executors”, the current executors never passed on the plaintiff brothers’ responses, including confirmation that an earlier settlement offer remained open, nor sought any comment from the defendants on the allegations made by the plaintiff brothers; and

(d)notwithstanding having not sought comment from the defendants, the current executors have investigated the plaintiff brothers concerns but have been unable to reach a conclusion and instead stated:

We have undertaken our own review of records and information available to us including those that have been brought to our attention by both the [plaintiff brothers] and the [defendants].

A considerable amount of time has been spent, and costs incurred, in reviewing and understanding all the issues. Certain information, which we do not know the extent of, has not been available to the executors as it has been sealed by the Court.

It is the executors’ opinion that no further benefit can be gained by the estate in having the executors continuing to review the claims and counter-claims of the [plaintiff brothers] and the [defendants].

Discussion

[9]                  The application is made pursuant to s 21 of the Administration Act 1969. That section states:

21       Discharge or removal of administrator

(a)    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 place, on such terms and conditions in all respects as the Court thinks fit.

[10]               In Farquhar v Nunns Heath J summarised the principles that should guide the Court in the exercise of its powers under s 21. These have since been confirmed by the Court of Appeal in in Tod v Tod1 and in Frickleton v Frickleton.2 The relevant principles are:3

(a)The starting point is the Court’s duty to see estates properly administered and trusts properly executed.

(b)This jurisdiction involves a large discretion which is heavily fact-dependent.

1      Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22].

2      Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154 at [29].

3      Farquhar v Nunns [2013] NZHC 1670 at [13].

(c)The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration, but ultimately the question is as to what is expedient in the interests of the beneficiaries.

(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.

(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.

[11]               Having reviewed the proceedings generally, and in particular the present application, the affidavit of Mariette van Ryn and the affidavit of Mr Goodwin, I am satisfied it is appropriate to replace the current executors with Ms Atchison as a new independent executor.

[12]               In particular, I agree with Mr Miles that not only have the current executors failed to keep any of the beneficiaries informed generally, it is also difficult to see why or on what basis the current executors did not pass on the plaintiff brothers’ responses to the defendants’ allegations for some 10 months or even at the very least, provide a summary of the plaintiff brothers’ position in a timely manner. It is noted that the nature of the plaintiff brothers’ responses have only ultimately been provided as a result of the filing of the current application. The current executors’ failure to provide the relevant information has not only clearly resulted in frustration on all sides but self-evidently has resulted in delays in finalising the estate noting that it is now nearly two years since the current executors were appointed. In the circumstances I accept that at the very least the defendants cannot reasonably have any confidence in the current executors and given the current executors seem to have no identified strategy for working through the remaining issues, their replacement is accordingly not only expedient in terms of s 21 but the only option.

[13]               I am also satisfied on the basis of the evidence before me that Ms Atchison is an appropriate appointment and is appointed accordingly. In proceeding to finalise the estate, Ms Atchison is to consider the reasonableness of any outstanding accounts

provided by Mr Goodwin and Mr Meltzer and if necessary and appropriate is given leave to seek such directions from the Court as may be necessary to resolve any outstanding issues arising with Mr Goodwin and Mr Meltzer and/or the beneficiaries of the estate.

[14]               The defendants have sought the costs of the application against Mr Goodwin and Mr Meltzer personally. Submissions on behalf of the defendants on costs are to be filed within four weeks of this judgment and any response on behalf of Mr Goodwin and Mr Meltzer within a further four weeks, following which I will determine the issue of costs on the papers.

[15]               Finally, I note Mrs Grant sought leave to apply for orders to recover outstanding legal fees from the plaintiff brothers out of their share of the estate. As it is not clear exactly what type of application could be filed and, as noted, the position of Mrs Grant’s client is not clear I decline to grant leave as such but observe this does not prevent Mrs Grant from filing an appropriate application if jurisdiction exists to do so.

Powell J