Abbott v Comer

[2015] NZHC 2416

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-001733 [2015] NZHC 2416

IN THE MATTER	of the estate of NEIL EDWIN FORBES
BETWEEN	LINDA JANE ABBOTT Applicant
AND	IAN WILLIAM COMER Respondent

Hearing:	On the papers
Judgment:	2 October 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 2 October 2015 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Carlile Dowling Lawyers, Napier.

Chartwell Law, Hamilton.

DM O’Neill, Hamilton.

ABBOTT v COMER [2015] NZHC 2416 [2 October 2015]

[1]      The applicant having obtained orders now seeks costs against the respondent. The usual rule is that costs follow the event.   In this case there was no trial and orders for an inventory and account were made by consent.  The applicant now seeks orders as to costs from the respondent on a 2B basis together with disbursements.

[2]      I have received quite detailed submissions tracing the history of this matter. The applicant asserts that the executor failed to provide full information despite numerous requests.  There is on the file extensive affidavit evidence dealing with the various requests and responses.

[3]      I accept that a Court may make costs orders against an executor when the executor has acted unreasonably in not providing information.1     However, it will often be the case that in a family situation where neither the applicant nor the respondent are acting in a professional capacity, that there are misunderstandings and emotions intervene.  Sometimes it can be better to just acquiesce to requests, even if unreasonable, to save costs.

[4]      The essential position of the applicant is that the executor acted unreasonably in refusing to provide information.  The essential position of the respondent is that the applicant’s requests were unreasonable, but that she acquiesced in the end to save further costs and inconvenience.

[5]      In assessing the reasonableness of the parties’ actions it is relevant whether the applicant gained any additional information  from the inventory and account made by consent.  The respondent submits nothing was gained that the applicant did not already have.  The applicant disagrees.   Extensive affidavit evidence has been filed in support of each submission.

[6]      My view is that it has not been shown that the respondent was withholding significant material information at the time the matter reached the trial stage.  The applicant cannot point to any new material information it received from the account. If the matter had proceeded to trial it is quite possible that the application might have

been dismissed on that basis.2    If the respondent had in fact succeeded at trial, he would be the party entitled to costs.

[7]      I note that the respondent in providing an inventory and account submitted it was not necessary or reasonable to provide those documents, but did so in the end because no great expense or inconvenience was involved.   So while the applicant obtained the orders it sought, the merits in a practical sense were not resolved against the respondent.  Rather the respondent’s acquiescence to what he considered to be an unreasonable request saved the both parties unnecessary expense and delay.

[8]      The applicant has not made out a case for costs.  Insofar as the applicant says she succeeded because orders were made by consent, I do not accept that basic premise.

[9]      Although the respondent previously advised the Court that costs would not be sought from the applicant, the respondent’s submissions indicate that costs are now sought.  My view from the information available to me is that the respondent must share some of the blame for the impasse.   There was fault on both sides.   The applicant’s requests were on occasions excessive and her complaints vexatious. However the respondent’s responses at times were less than co-operative.  Without the benefit of a full hearing it is not possible to conclude with any more precision who was more or less at fault.  The respondent did consent to the orders against him and  has  not  made  out  a  case  for  costs.    In  any event  I  note  the  respondent’s submission that the applicant has previously agreed to indemnify the respondent for costs.

[10]     In all the circumstances I decline to make any order for costs.  Costs are to lie where they fall.

[11]     I turn to whether the respondent should not be indemnified from the estate, as the applicant seeks.

[12]     I am not prepared to make that order.  Mr Comer was appointed executor of the will without his knowledge and in my assessment of the affidavits has sought to carry out his duties in a proper manner.  He may have made some errors on the way, but none that would disqualify a usual and reasonable claim for costs. That would be an unjust penalty.

……………………………..

Asher J