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.…

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.

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Details

Case: [2019] NZHC 458
Decision Date: 15 March 2019

CaseChat Overview and Summary

The High Court of New Zealand, Napier Registry, dealt with an application by Kurt Lee Wilkins to remove Steven Allan Wilkins as the administrator of the estate of Allan Ross Wilkins. The application also sought vesting of the property at 41 Seddon Crescent, Marewa, Napier in Kurt and Glen Patrick Wilkins, as well as an order for Steven to pay the costs of the application. The central legal issue was whether the court should remove Steven as the administrator of Allan's estate due to his failure to manage the estate's primary asset, a property in poor condition with significant mortgage arrears, and to vest the property in Kurt and Glen as executors. The court had to consider the relevant statutory provisions, the discretion it had under the Administration Act 1969, and whether the application was in the best interests of the estate's beneficiaries.

The court found that Steven's failure to take necessary steps to manage the estate's primary asset and the consequent deterioration of the property justified removing him as administrator. Despite the unusual circumstance of Kurt being a discharged bankrupt and Glen being in prison, the court was satisfied that Kurt would properly administer the estate and that Glen would cooperate. The court noted that the bank's security interests would remain unaffected by the vesting of the property in Kurt and Glen. The court granted the application, removed Steven as administrator, vested the property in Kurt and Glen, and ordered Steven to pay the application costs. The court also granted leave for the applicant to apply for further directions if needed.

Orders