Ah Kuoi v Ah Kuoi [2019] WSSC 13 (18 January 2019)

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Case name:	Taula Ierome Ah Kuoi v John Ah Kuoi

Citation:	[2019] WSSC 13

Decision date:	18 January 2019

Parties:	TAULA IEROME AH KUOI of Taufusi, Apia, Samoa v JOHN AH KUOI of Auckland New Zealand as Trustee of the Ah Kuoi Family Trust.

Judgment date(s):	18 January 2019

File number(s):

Jurisdiction:	Civil

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- Accordingly, I make the following orders: - (i) The application to remove the Defendant as Administrator and costs claimed of $6,000.00 is dismissed; - (ii) The Plaintiff is ordered to prepare and serve on the Defendant a statement of account of the rent received from the lease of the building to Chen Lin within two (2) calendar months of the date of this judgment; - (iii) Pursuant to section 22 of the Administration Act 1975, the Defendant is ordered to exhibit on oath in the Court a true and perfect inventory and account of the estate of the deceased including a statement of account of income and expenditure made by, received or incurred by the Administrator since his appointment within three (3) months of the date of this judgment. That statement of account is to incorporate and include the rent received from the lease to Chen Lin at (ii) above; - (iv) The inventory and account at (iii) above is to be served on all the surviving offspring of the deceased Tuaopepe or where the offspring is him or herself deceased, a representative of that deceased offspring as determined appropriate by the Defendant within a reasonable time after filing with the Supreme Court and in any event, no later than 1 calendar month after filing with the Supreme Court; - (v) An eviction order is granted and the Plaintiff and his family are to vacate the land within three (3) calendar months of the date of this judgment; - (vi) The Interim Injunction made on the 22nd May 2017 is set aside; - (vii) The Defendant is ordered to file and serve his Memorandum as to costs within 14 days; and - (viii) The Plaintiff is at liberty to file and serve his response to the Defendant’s Memorandum as to costs within 14 days thereafter.
Representation:	M V Peteru for Appellant P Fepuleai for the Respondent

Catchwords:

Words and phrases:	Brother’s disputes over the estate of their late father, eviction order is granted, counter-claim, beneficiaries

Legislation cited:	Administration Act 1975,

Cases cited:	Crick v Wallace [2015] NZHC 2260 and Fonoti Brown v Fonoti Brown [2002] WSSC 9 (15 May 2002), Sapolu CJ.

Summary of decision:

JOHN AH KUOI male of Auckland New Zealand as Trustee of the Ah Kuoi Family Trust.
Respondent

[1] The Plaintiff and Defendant are brothers. Their dispute relates to the Estate of their late father Tuaopepe Kame Ah Kuoi (“Tuaopepe”) who died intestate (“the Estate”) on the 28th of October 1994. The main asset of the estate according to the Defendant is land located at Taufusi. The land is approximately a half acre in size next to RHEMA being Lot 311 Plan 3480 (“the land”). There also are small amount of shares held with Vailima Breweries (250) and a bank account which the Defendant says may have been accessed to meet funeral expenses.

[2] The Defendant is the Administrator of the Estate. The Plaintiff alleges various breaches of fiduciary duty by the Defendant as Administrator alleging that:

[3] The Defendant admits that he was in the process of disinterment of his parents’ graves from the land. He denies that it was his parents’ wishes to be buried and to remain on the land. He says that the Plaintiff opposes disinterment so that he and his family can continue to live on the land and that his objection to the sale denies other beneficiaries their share of their inheritance.

[4] The Defendant also alleges that the Plaintiff unlawfully leased out the land at Taufusi to one Chen Lin in October 2015 and he alone benefitted from that arrangement.

[5] By way of counter-claim, the Defendant alleges that the Plaintiff opposes the disinterment of their parent’s graves is so that he can continue to live on the land. The Defendant seeks (a) an order of eviction of the Plaintiff and his family from the land; and (b) an order for the Plaintiff to account for all rentals that he collected from the land.

[6] According to the Defendant, Tuaopepe was survived by eleven beneficiaries. These were (i) Valasi Ah Kuoi (Tuaopepe’s wife); (ii) David Ah Kuoi; (iii) Ken Ah Kuoi; (iv) Sylvia Roberts; (v) Lily Hunter; (vi) Taula Ierome Ah Kuoi; (vii) Charlie Ah Kuoi; (viii) Betty Jones (ix) Tame Ah Kuoi (x) John Ah Kuoi; and (xi) Robert Ah Kuoi. In his affidavit, the Plaintiff also refers to two persons named Roy Ah Kuoi, one deceased and one having been legally adopted. In his evidence, the Plaintiff agrees that with him, there were eleven children.

[7] The Defendant was appointed Administrator of the Estate on the 11th August 2005 (annexure ‘A’ to Exhibit D1). Buried on the land are the Plaintiff and Defendant’s parents.

[8] According to the Plaintiff, between 1994 to 2000, his mother, Charlie Ah Kuoi and other children of his brothers lived on the land. In 2000, he then began to live on the land and he remains there to the present. He has paid no rent for his occupation of the land.

[9] The Defendant sent an email dated 27 January 2017 which was addressed to some and not all members of his family (exhibit P1). According to the Defendant, he had asked a member of their family, Gafatasi Patu, to provide a copy to the Plaintiff. The Plaintiff confirms receipt of the email, but after 27 January 2017.

[10] That email refers to “several discussions with our immediate family” and “the majority having agreed to sell the property and to re-locate Mum and Dad’s graves. The proceeds will be divided equally amongst all the beneficiaries. As the administrator of Mum and Dad’s estate, this is our only option going forward.” The email then sets out the ‘main points’ covered and agreed to. In his evidence, the Defendant stated that this had taken almost three years to discuss.

[11] The timetable set out in the email was for the disinterment of the graves on the 11th March 2017 followed by the sale of the land.

[12] The Defendant arrived in Samoa on the 7th March 2017. In his evidence, he says that when he arrived, he was informed that the Plaintiff had applied for an injunction to stop the disinterment of their parent’s graves and the sale of the land. He then met with the Plaintiff at Taufusi the next day, a meeting confirmed by the Plaintiff where according to the Defendant, the Plaintiff was unhappy. They agreed that when all surviving siblings arrive from overseas, they should all meet to discuss the issues related to the land at Taufusi. The Defendant agreed that a meeting was to be arranged because of the Plaintiff’s objection.

[13] The Defendant says he suggested a meeting at their sister Lilly Hunter’s home at Matautu-uta. The Plaintiff suggested they meet at Taufusi. The Defendant says he ended up booking the conference room at Aggie Greys Hotel in Apia for Friday 10th March and he prepared an Agenda for that meeting (exhibit D1 annex “B”). The Plaintiff could not recall whether he received a copy of the Agenda.

[14] The Plaintiff did not attend the meeting though he confirmed that he was in Samoa at the time. He also said that his sister Betty and Ken’s son Lotu also did not attend the meeting.

[15] According to the Defendant, the meeting proceeded on the 10th March and that all those present at the meeting unanimously approved the relocation of the parent’s graves as well as the sale of the land. Minutes of that meeting is attached to exhibit D1 annex “C”.

[16] In his affidavit, the Plaintiff says that he seeks the removal of the Defendant as he has failed to comply with section 12 of the Administration Act 1975 and that the Defendant has failed to provide any accounts for the estate. He however also acknowledged that he had not asked the Defendant for any accounts. He says that all beneficiaries should be consulted before any final decisions are made regarding the estate assets and that they should discuss estate matters together.

[17] The Plaintiff says that he has served his family and his father his whole life and his father had showed him where they want to be buried. Now the Defendant wants to sell the land and disinter them from it.

[18] The Defendant in his evidence confirmed that between 2005 and January 2017, “nothing had happened”. He however said that he had met with the Plaintiff at “Sylvia’s house” in mid-June of 2016 to make him aware of the program. He also confirmed that whilst the meeting on the 10th March 2017 unanimously agreed on the way forward, they did not constitute a majority of ‘the family’.

[19] In response to the application for his removal because he does not reside in Samoa, the Defendant said that he was appointed by the family in 2005. He comes between Samoa and New Zealand regularly, two to three times per year. In his evidence, the Plaintiff confirmed that the Defendant would come every year. The Defendant accepted that he had not reported to the beneficiaries but explained he didn’t do so because there was nothing to report. This was because in his evidence, the Defendant ‘had everything and kept everything.’

[20] The Plaintiff confirms that he and Lily Ah Kuoi-Patu leased the land and rent was paid on the lease (exhibit D1, Annex “D”). The rent was paid into an account for four of them, that is, for the Plaintiff, Lily Ah Kuoi-Patu, and the descendants of Ken Ah Kuoi and Kame Ah Kuoi. The lease annex “D” dated 3rd August 2015 shows the “Lessor” as the Plaintiff and Lily Ah Kuoi and Lessee as Chen Lin. The lease period is stated as 5 years with a rental of $2,000.00 per month.

[21] In his evidence, the Plaintiff suggests that as an option for new Administrator, he and another person could be appointed. The Plaintiff does not want the Defendant to continue as Administrator given the breakdown of their relationship.

[22] The Plaintiff’s application seeks the removal of the Defendant as Administrator. In my unreported Ruling on the interim injunction application dated 22 May 2017, I set out the law that applies to the removal of an Administrator. I will only briefly touch on the law to note that the jurisdiction is both statutory (section 12, Administration Act 1975) and inherent and is a discretionary power.

[23] The statutory power to remove an administrator is found in section 12 of the Administration Act 1975 which provides:

(b) it becomes expedient to discharge or remove an administrator, – the Court may discharge or remove that administrator, and may if it thinks fit appoint a person to be administrator in his or her place, on such terms and conditions in all respect as the Court thinks fit.”(emphasis added)

[24] In Crick v Wallace [2015] NZHC 2260 which I referred to in my earlier ruling, Mander J described the jurisdiction to remove a trustee as follows:

“[11] The jurisdiction provided to the Court by s 21 has been described as “intensely discretionary “and one that is dependent upon the particular facts and circumstances of the individual case. However, before that discretion can be exercised, circumstances must exist which trigger the Court’s statutory jurisdiction.

[12] Expedience is the test the Court is required to apply. It is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness is not required to be established.”

[25] In Fonoti Brown v Fonoti Brown [2002] WSSC 9 (15 May 2002), Sapolu CJ summarized the authorities on the removal of a trustee in the following way:

“From the authorities cited, it is clear that the court has a duty to see that trusts are properly executed. In carrying out that duty, the Court has an inherent jurisdiction in equity to remove a trustee and appoint a new trustee in his place to ensure proper execution of a trust. In the exercise of that jurisdiction, the principal guide is the welfare of the beneficiaries to be ascertained by looking at all the circumstances including, as Dixon J pointed out at p.580 in Miller v Cameron, the interests of the beneficiaries, the security of the trust property, the efficient and satisfactory execution of the trusts, and the loyal and sound exercise of the powers given to the trustee. The jurisdiction must be exercised with caution since the removal of a trustee from office is no trivial matter.”

[26] The Plaintiff applies for the removal of the Defendant pursuant to section 12 of the Administration Act 1975 and puts himself and/or another beneficiary forward as an alternative administrator. The Plaintiff however has not proposed who the other alternative option is. In bringing this application, the Plaintiff as the sole Plaintiff has done so alone amongst the beneficiaries of the estate.

[27] Whilst I accept that the Defendant resides in New Zealand and has not appointed an attorney, I am not satisfied that the Defendant should be removed as administrator. Firstly, the Defendant travels to Samoa regularly, on his evidence two to three times a year. The Plaintiff accepts that the Defendant is in Samoa annually. I am not satisfied that section 12(1)(a)(i) has been satisfied by the Plaintiff.

[28] Secondly, even if I were satisfied that section 12(1)(a)(i) was met, I am not satisfied that I should exercise the discretion to remove the Defendant as Administrator. I accept that the Defendant has been somewhat dilatory in his administration of the trust. From his appointment as administrator in August 2005, he took minimal steps to administer and wind-up the estate. He continued to allow the Plaintiff and his family to live on the land rent free. There is no evidence however that any beneficiaries raised concerns about that arrangement, I expect, because the Plaintiff is family. I also accept the Defendant’s evidence that some discussions had however taken place prior to January 2017 to reach the decisions set out in the email of 27 January 2017, albeit informal.

[29] In determining whether to remove the Defendant or not, the duty of this Court is to ensure that the trusts are properly executed. In the exercise of this jurisdiction, “the principal guide is the welfare of the beneficiaries to be ascertained by looking at all the circumstances including, as Dixon J pointed out at p.580 in Miller v Cameron, the interests of the beneficiaries, the security of the trust property, the efficient and satisfactory execution of the trusts, and the loyal and sound exercise of the powers given to the trustee.”

[30] The discretion whether to remove a trustee is heavily fact dependent. Here, there are it seems 11 beneficiaries in the estate. Five have passed away leaving their share in the estate to their children. The main asset of the estate is the land at Taufusi which is approximately a half acre in size. There was no valuation tendered as part of these proceedings but the Defendant said that it is valued at approximately three million tala. Whilst I do not accept this as the definitive value of the land, I do accept that the land is valuable expensive land.

[31] In his evidence, the Defendant says that the reason for selling the land and disbursing the estate to the beneficiaries is that by failing to do so, the number of beneficiaries will turn into the hundreds. By selling the land and disbursing the proceeds to those entitled as beneficiaries, they will be able to use it for their education.

[32] To date, the principal beneficiary of the estate has been the Plaintiff and his family. He has resided on the land rent free since 2000. He has rented out a building on the land, together with Lilly Ah Kuoi to Chen Lin and banked the rent into an account in which only four of them benefitted. These were the Plaintiff, Lilly Ah Kuoi, Gaogao Ah Kuoi and Lotu Ah Kuoi. There was no explanation why the rent benefitted only four beneficiaries when it was trust property from which the rent was derived. The status quo is not in the interests of beneficiaries as a whole.

[33] On the evidence, I am satisfied that the Defendant is taking steps to execute the estate trust. He has sought to communicate and/or meet with beneficiaries and to take the matters forward. These, as is often the case in these types of family matters involving burial sites and family land, is fraught with emotion.

[34] I am far from satisfied that it is necessary to remove the Defendant in order to see that the trust is properly executed. Indeed, it seems that by the Defendant taking steps to execute the estate trust for the benefit of the beneficiaries as a whole, these proceedings have been brought by the Plaintiff. There was certainly no evidence of any complaint from the Plaintiff before January 2017 and he had not asked for a statement of accounts since 2005. I conclude that it is not in the interests of the beneficiaries as a whole to remove the Administrator. This will lead to further delay and possible further dispute.

[35] This conclusion is reinforced by the fact that the Plaintiff has brought these proceedings by himself and he has not put forward any viable alternative Administrator for the estate. In this context, I do not view the Plaintiff as an appropriate alternative Administrator. These proceedings have been prompted by the email of 27 January 2017 and the decision to sell the land and disinter their parents. On his own evidence, the Plaintiff said that if the Court ordered him to leave the land, he doesn’t know whether he would obey the order. The evidence leads me to conclude that the Plaintiff wishes to stay on the land, which to date has been rent free, a state of affairs that patently benefits the Plaintiff but not the rest of the beneficiaries. Having also leased out a building on the land with Lilly Ah Kuoi and having distributed the rent to only four of the local beneficiaries, I am not satisfied that he would properly administer the trust. I am also not satisfied on the evidence that the Defendant has lost the confidence of the majority of the beneficiaries.

[36] In his evidence, the Plaintiff said that the decisions made by the Defendant should be discussed within the family, that there is a need for a meeting to do so. When these proceedings began in early 2017, the Defendant as a result did precisely that and called a family meeting to discuss how to proceed with the estate. The Minutes of that meeting is attached to exhibit D1. The Plaintiff knew that the meeting was being held, he was in Samoa at the time but decided not to attend. At that meeting, various options were discussed and the decision to sell the land was apparently re-affirmed by the majority and to proceed with the liutofaga of their parents. The Defendant as Administrator has sought to consult with the beneficiaries on the way forward but the Plaintiff chose not to attend.

[37] In his evidence, the Plaintiff says that Tuaopepe expressed his desire to be buried on the land. I am not satisfied that this has been proven on balance but in any event, if he did express such a wish, it is not binding on the Administrator. It is however a matter that must be handled sensitively and appropriately. The Defendant said that land had been secured at Vailele Cemetry overlooking the sea. This is no basis to remove the Defendant as Administrator and if the land is to be sold, the decision to disinter their parents is understandable. I decline to issue a permanent injunction to prohibit the removal of their parents graves. This necessarily means that the interim injunction I granted on the 22nd May 2017 is superseded by this judgment and is accordingly set aside.

[38] I accept that the Defendant has not provided a report to the beneficiaries in the estate of income and expenses. I will make appropriate orders to address the concerns of the Plaintiff.

[39] It is not contested by the Plaintiff that rent has been collected on the land which is trust property. The orders that I make will require an account of that rent collected so that proper account of the estate income can be made by the Defendant.

[40] I accept also that the continued occupation of the land by the Plaintiff is hindering the administration of the estate. The Administrator is the legal owner of the land on behalf of all the beneficiaries. He is lawfully entitled to require those in occupation of the land to vacate that land. There is no lawful reason pleaded by the Plaintiff in his defence to the counter-claim precluding the making of an order for the Plaintiff to vacate the land and accordingly, I will grant the order evicting the Plaintiff and his immediate family from the land. In reaching this conclusion, I reject the Plaintiff’s assertion in his Statement of Defence to the counter-claim that he has every right to remain on the land until such time as ‘all beneficiaries are involved in in decisions relating to the estate of Tuaopepe Kame Ah Kuoi.”

[41] I decline to issue orders sought by the Plaintiff requiring the appointment of administrators to the estate of David Ah Kuoi, Ken Ah Kuoi, Sale Ah Kuoi and Kame Ah Kuoi. Those estates are not parties to these proceedings. Appropriate application in accordance with the Administration Act 1975 and/or the Public Trust Office 1975 appointing a trustee should be made.

[42] This is a family dispute between siblings. It involves very difficult questions about family land and the burial site of parents. I encourage you both to rebuild your relationship as siblings and to approach these family matters with maturity, understanding and wisdom with a view to benefit all beneficiaries and your family as a whole. Your family no doubt looks to you both for leadership and reconciliation and I strongly encourage you both to do so. Your failure to do so may impact on the generations that follow you both.

(i) The application to remove the Defendant as Administrator and costs claimed of $6,000.00 is dismissed;

(ii) The Plaintiff is ordered to prepare and serve on the Defendant a statement of account of the rent received from the lease of the building to Chen Lin within two (2) calendar months of the date of this judgment;

(iii) Pursuant to section 22 of the Administration Act 1975, the Defendant is ordered to exhibit on oath in the Court a true and perfect inventory and account of the estate of the deceased including a statement of account of income and expenditure made by, received or incurred by the Administrator since his appointment within three (3) months of the date of this judgment. That statement of account is to incorporate and include the rent received from the lease to Chen Lin at (ii) above;

(iv) The inventory and account at (iii) above is to be served on all the surviving offspring of the deceased Tuaopepe or where the offspring is him or herself deceased, a representative of that deceased offspring as determined appropriate by the Defendant within a reasonable time after filing with the Supreme Court and in any event, no later than 1 calendar month after filing with the Supreme Court;

(v) An eviction order is granted and the Plaintiff and his family are to vacate the land within three (3) calendar months of the date of this judgment;

(vii) The Defendant is ordered to file and serve his Memorandum as to costs within 14 days; and

(viii) The Plaintiff is at liberty to file and serve his response to the Defendant’s Memorandum as to costs within 14 days thereafter.

Supreme Court of Samoa

Ah Kuoi v Ah Kuoi [2019] WSSC 13 (18 January 2019)