Wilkins v Wilkins

[2019] NZHC 458

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2008-441-308

[2019] NZHC 458

UNDER

the Administration Act 1969

IN THE MATTER

of an Application to Remove an Administrator

BETWEEN

KURT LEE WILKINS

Applicant

AND

STEVEN ALLAN WILKINS

Respondent

Hearing:	7 March 2019
Appearances:	M J Wenley for the Applicant
Judgment:	15 March 2019

JUDGMENT OF COOKE J

[1]        The applicant has filed an originating application seeking orders (as varied in his initial submissions):

(a)removing Steven Allan Wilkins as administrator of the Estate of Allan Ross Wilkins;

(b)vesting the property at 41 Seddon Crescent, Marewa, Napier (being the land in Record of Title HBD 1/11334) in the continuing trustees, Kurt Lee Wilkins and Glen Patrick Wilkins pursuant to s 21(3) of the Administration Act 1969; and

(c)directing that the reasonable costs of and incidental to the application be met out of the estate of Steven Allan Wilkins.

WILKINS v WILKINS [2019] NZHC 458 [15 March 2019]

[2]        The application is supported by  an  affidavit  of  Kurt  Lee  Wilkins  sworn 11 October 2018 and a memorandum of counsel. On 23 October orders were made permitting the proceedings to be commenced by originating application and directing that it be served on the applicant’s six siblings. Affidavits confirming service on the siblings have been filed.

[3]        There is no opposition to  the  orders,  and  no  appearance  other  than  by  Mr Wenley for the applicant when the matter was called on 7 March 2019. Mr Wenley provided additional submissions at the time, and answered questions I had about the application. In addition, following the hearing I asked for an explanation of a further matter which resulted in him filing an additional  memorandum of counsel dated     11 March 2019, and a further affidavit from Ms Carole Matts concerning details relating to the relevant estates.

The facts

[4]        The applicant’s father, Allan Wilkins died on 10 August 2007, and their mother Beryl Daley died not long thereafter on 31 October 2007. Letters of administration were granted for Ms Daley’s  estate  on  1 April  2008,  and  Mr Wilkins’ estate  on 11 August 2008. The seven children are effectively beneficiaries in equal shares of both estates. Mr Wilkins held the principal asset in issue, the property at 41 Seddon Crescent, Marewa, Napier solely in his name notwithstanding the long-standing de facto relationship with Ms Daley. In those circumstances this application relates solely to the administration of Mr Wilkins’ estate.

[5]        The applicant, Kurt together with the respondent Steven and their brother Glen are the executors of Mr Wilkins’ estate (as well as Ms Daley’s estate). Kurt was made bankrupt in October 2013, but was discharged from bankruptcy on 6 October 2016. Glen is presently serving a lengthy sentence in Mangaroa Prison near Hastings for drug related offending.

[6]        As indicated the property at 41 Seddon Crescent is the principal assets of the estate. It is, or has been occupied by Glen, and a further brother Craig as well as other tenants. In his affidavit Kurt explained the property has been rented from 27 November 2007, not long after Ms Daley’s death, and that each tenant has accumulated arrears, including arrears that are directly attributable to Glen ($4,760)

and Craig ($1,900). As a consequence of a lack of funds, the loan secured by mortgage to Westpac Bank is in arrears, and Westpac has threatened recovery action. Kurt explains that the other concern is that the property is in very poor condition, evidenced by photographs placed in evidence.

[7]        By letter dated 6 September 2018 Kurt invited Steven and Craig to agree to the property being vacated and sold. There has been no response.

[8]        Kurt has accordingly made this application, which has been duly served on his two brothers and the other siblings. He indicates in his affidavit that his motivation in making the application is to discharge his duties as administrator, and to protect the interests of the beneficiaries, particularly his brother Lance and his sister Codee (although the estate of both parents is divided equally between the siblings).

[9]        There is a caveat registered on the title by the Official Assignee. That caveat arises from Kurt’s bankruptcy. It is anticipated that any distribution from the estate in Kurt’s favour will be taken by the Official Assignee in relation to Kurt’s creditors in bankruptcy.

The application

[10]      Kurt seeks orders removing Steven as administrator leaving him as joint executor with his brother Glen. The application is made under s 21 of the Administration Act 1969, which 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.

[11]     An approach that can be followed to an application under this section is set out by the Court of Appeal in Tod v Tod approving the decision of Heath J’s Farquhar v

Nunns.1 As was acknowledged in those decisions the jurisdiction involves a broad discretion which is fact dependent.2

[12]      I am satisfied that the orders are appropriate in this case. The manner in which the estate is being administered has involved the deterioration of the estate’s principal asset over a number of years to the point that the bank who hold security wish to take some kind of enforcement action. It is apparent that the respondent is not taking the necessary steps to administer the estate, and preserve its assets.

[13]      A slightly unusual feature of granting the application is that it will leave as executors Glen who is presently serving a lengthy prison sentence, and Kurt who is a discharged bankrupt. Mr Wenley explained that it was anticipated that Glen would cooperate with the due administration of the estate which would now be progressed by Kurt. There is certainly no difficulty in knowing where Glen is to get hold of him. From what has been filed it is also apparent that Kurt intends to take the proper steps for the due administration of the estate, including vacating the house and attending to its sale. That appears to be appropriate. The orders will facilitate this.

[14]      Mr Wenley bought to my attention correspondence that he had had with Westpac New Zealand Ltd seeking their consent to this application. The bank’s somewhat formulaic response has been that while the account remains in arrears and continues to deteriorate it is unable to provide a letter in support of the application to remove Steven as joint mortgagor. I am satisfied, however, that the bank’s position is not prejudiced by the proposed application. Whilst Steven will be removed from the title his personal obligations to the bank continue, and the bank retains its full security over the property. Moreover the purpose of the application is to take steps to realise the asset, and pay the bank debt.

[15]      As part of the application, Mr Wenley sought an order vesting the property in the continuing trustees pursuant to s 89 of the Land Transfer Act 2017. Such an approach was followed by Toogood J in Hing v Hing, although that is a somewhat brief decision.3 Nevertheless this seems to enable the most efficient way of attending to the change in the registered title arising from the orders the Court is making.

1      Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145; and Farquhar v Nunns [2013] NZHC 1670.

2      Above at [22(b)].

3      Hing v Hing [2018] NZHC 2315.

[16]      Mr Wenley also sought an order that the costs of and incidental to the application be met out of the estate. That seemed also to me to be appropriate. I asked Mr Wenley to supply information as to the costs of the application and he duly did so, and he also provided updated information with the updated material I sought after the hearing. These seem to me to be reasonable fees.

[17]      Given the further information concerning the estate of Ms Daley and any other complications, I also agree that there should be leave to apply.

[18]Accordingly I made the following orders/directions:

(a)that pursuant to s 21 of the Administration Act 1969 Steven Allan Wilkins is removed as an administrator of the estate of the late Allan Ross Wilkins;

(b)that pursuant to s 21(3) of the Administration Act 1969 and s 89 of the Land Transfer Act 2017 the property at 41 Seddon Crescent, Marewa, Napier (being the land in Record of Title HBD 1/11334) is hereby vested in the continuing trustees, Kurt Lee Wilkins and Glen Patrick Wilkins;

(c)that the applicant be granted leave to apply;

(d)that the applicant’s cost of $8,695 (GST inclusive) together with disbursements of $680 should be paid out of the estate of Allan Ross Wilkins; and

(e)a copy of this decision is to be sent to the beneficiaries and to Westpac New Zealand Ltd.

Cooke J

Solicitors:

Willis Legal, Napier for Applicant