In re Estate of Teremoana Tutai Mataio [2010] CKHC 49; Probate12.2006 (7 May 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
Probate No: 12/2006

IN THE MATTER of the Estate of TEREMOANA TUTAI MATAIO, Labourer, Atiu
Deceased

AND

IN THE MATTER of an application by MAARATUPUNA TAIRI, Agriculture Officer of Mapumai, Atiu
Applicant

JUDGMENT OF DAVID WILLIAMS CJ

[1] The deceased died intestate on 22 August 2006.

[2] On 29 November 2009 Letters of Administration were issued by this Court to Mr Maaratupuna Tairi of Atiu ("the Administrator").

[3] By letters of application dated 8 April 2009 and 17 April 2009, all the children of the deceased applied to revoke the appointment of the Administrator and to appoint Mrs Tapu Kanaariki Vaiimene in his place.

[4] On 18 May 2009 I requested the Registrar to ascertain whether the Administrator consented to his retirement and replacement and to that end, on 26 May 2009 issued a Minute in the following terms:

"1. I have read the Application dated 29 November 2006 in which the Applicant seeks an order granting to him the Letters of Administration of the Estate, effects and credits of the deceased Teremoana Tutai Mataio, in place of Mr Maara Tairi.

2. The following grounds were stated in support of the Application in the Applicant's Affidavit dated 29 November 2006:
   
   1. The making of the application was discussed with the deceased's children residing in Atiu and Rarotonga and with the other children residing overseas. All the children have agreed that the Letters of Administration should be granted to the Applicant.
      
   2. A consent form has been signed by the children of the deceased living in the Cook Islands and by Tapu Vaiimene, Power of Attorney for the deceased's children in Australia.
      
3. S 21(1) of the Administration Act 1969 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 place, on such terms and conditions in all respects as the Court thinks fit.

4. There is no proof of service of the Application on Mr Maara Tairi and I have not received any indication that, as existing administrator, Mr Maara Tairi consents to being discharged from his office. If his desire is to be discharged, he must provide written consent to his removal.
   
5. In the event that the existing administrator does not consent to being discharged he shall give reasons in writing for his opposition to the order sought. Thereafter the Court will decide the application."
   

[5] The Administrator responded by letter of 9 June 2009 which stated:

"Thank you for your letter dated 27 May 2009 (re: Probate 12/06 – Teremoana Mataio Estate – Administrator), served to me on the 8 June 2009 by Tangata Vainepoto, Deputy Registrar, Atiu.

In reference to the minute of Williams Cj, I Maaratupuna Tutai Mataio TAIRI the existing Administrator to Teremoana Mataio's estate chose to do not consent to being discharged due to the following reason/reasons:

1. The first application form presented to the Bank of the Cook Islands to open a new account in January 2008 turn out to be the wrong form as according to Bank Official. This was done while all of Teremoana Mataios biological children were still in Atiu January 2008. Because of this error, the opening of the new account did not eventuate. By then Terangi Mataio,one of the elected trustees to the new account had left to return to Australia. In May 2008,another application to sort out the new account was sourced and was given to Tennessee Mataio (who at the time was travelling to Australia) to take it to Australia for Terangi Mataio to sign it and to bring it back with him when he return to the Cook Islands. Again that did not eventuate because Tennessee never returned to the Cook Islands nor the application form. Since then, I did no further action.

2. Furthermore, I have allowed 4 of Teremoana Mataio's children and one other member of the family (other than Teremoana's children) to borrow money from the account which they all agreed to pay back. The one other member has started paying his share of the money he borrowed while Teremoana's children so far had made no attempt to pay back the money they borrowed. I will not yet transfer any money until all monies borrowed are paid back. However, should all Teremoana's children unanimously agree to write off all monies borrowed by the 4 children or for themselves to settle it at later date, then I will transfer all monies to the childrens new account once the other family member pays the balance of the money he borrowed. Having done that, I will officially hand in my consent to the High Court to remove my appointment as Administrator to Teremoana Mataio's estate and as well as hand in my final report to all parties concerned."
   

[6] Mrs Tapu Vaiimene replied on 18 January 2010 as follows:

"I have read the Chief Justice's minute dated 26th May 2009,and Mr Maara Tairi's response by letter dated the 9th June 2009, into the query to Probate 12/2006, in matters relating to the funds of the late Teremoana Mataio.

I have relayed Mr Tairi's comments to the seven children residing in Australia and the two currently living on Rarotonga, of the update in relation to their father's estate. They have asked me to response to Mr Tairi's letter dated 9th June 2009.

1. I agree that there was delay relating to the opening of the new account, however in December 2008, one of the children namely Miimetua Mataio and myself residing in Rarotonga opened, the new account number 77903-S1, (UTUREI HOUSE PROJECT) – Trustee are: Miimetua Mataio and myself Tapu Vaiimene, with the intention that at a later date, a third Trustee will be appointed (Terangi Mataio) when he comes over for a holiday.

The purpose of opening the new account is to invest the balance of the fund in the building project already started by the deceased and also as per family meeting dated 8th January 2008 (minutes of meeting with Mr Maara Tairi).

2. The children still insist that the "other family member" who borrowed the money from the account be given one month to pay back the full amount she/he borrowed and the total fund held in the old account, then be transferred to the new account BCI 77903-S1.
   
3. That Mr Maara Tairi provide a list of the names of the four children that borrowed money, and the amount borrowed and leave it for the children to decide what they intend to do with those four children at a later date.
   
4. Mr Tairi also to provide a copy of the minute of a family meeting, held in Atiu on the 8th January 2008,which a copy has been retained with Mr Tairi's file.
   
5. That a copy of the statement of account of the financial affairs of "the deceased" as from the 8th January 2008 to date be provided to the court, and a copy to the children of the deceased.
   

It is hereby submitted that the court directs Mr Maara Tairi, the current Administrator, to respond to condition 2 to 5 above forthwith."

[7] I have carefully read through the foregoing correspondence. In my view, it is expedient to remove the Administrator and to appoint Mrs Tapu Vaiimene in his place. In this regard, the Court notes that the Administrator was, in general, willing to consent subject to certain pre-conditions. The decision to remove the Administrator is not to be taken as an adverse comment on the work of the Administrator. He has done his best. It is simply a case where the current circumstances make it more appropriate for Mrs Vaiimene based in Rarotonga to handle the Uterei House Project and other related matters for the children.

[8] However, before any order of removal by the Court is issued, I direct the Administrator to provide to the Court no later than 42 days from the date of service of this Judgment and to verify by affidavit the following:

1. A list of the names of the four children that borrowed money and the amount borrowed and leave it for the children to decide what they intend to do with those four children at a later date.

2. A copy of the minute of a family meeting held in Atiu on the 8th January 2008 of which a copy has been retained with Mr Tairi's file.

3. A copy of the statement of account of the financial affairs of "the deceased" as from the 8th January 2008 to date be provided to the Court.

[9] If the Administrator has any queries about the matter he should, in the first instance, contact Mr Teati Mokoroa, Deputy Registrar.

[10] Following the provisions of the Administrator's affidavit as directed in paragraph 8 above, Mrs Vaiimene on behalf of the children has leave to apply for the issue of the order for removal and replacement. On removal, the Administrator will be obliged to transfer all funds held by him as Administrator to Mrs Vaiimene. Thereafter he will be released from all further responsibilities.

David Williams CJ

7 May 2010

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.