Anderson v Patterson

[2024] NZHC 2474

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-000021

[2024] NZHC 2474

UNDER

Section 49, of the Administration Act 1969

IN THE MATTER OF

the Will of ELIZABETH BEVIN PATTERSON

BETWEEN

SANDRA MARIE ANDERSON

Plaintiff

AND

ELIZABETH JANET PATTERSON

Defendant

Hearing:

21 February 2024

Counsel:

G P Tyrrell for Plaintiff

A J Douglass and S Gaskell for Defendant

Judgment:

30 August 2024

JUDGMENT OF PRESTON J

(Costs)

This judgment was delivered by me on 30 August 2024 at 2.00 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date……………

ANDERSON v PATTERSON [2024] NZHC 2474 [30 August 2024]

Introduction

[1]    Following a hearing, on 7 June 2024 I gave judgment in favour of the plaintiff Sandra Anderson (Sandra) granting her injunctive and ancillary relief pending proceedings in the Family Court in which she seeks further provision from the estate of her late mother under the Family Protection Act 1955 (FPA).1

[2]    I dismissed the cross-application of the defendant Elizabeth Patterson (Liz) for summary judgment.

[3]Liz is Sandra’s sister. She opposes the FPA claim.

Costs

[4]    Sandra seeks costs as the successful plaintiff. In the judgment I expressed an initial view as to costs which would ordinarily follow the event on a 2B basis and directed the parties to file memoranda. Costs memoranda are now to hand. It transpires that both Sandra and Liz are legally aided, although Sandra was initially privately represented.

[5]    Although Liz is legally aided Mr Tyrrell submits it is appropriate that costs be awarded against her under s 45(2) of the Legal Services Act 2011, on the basis there are exceptional circumstances justifying such an award given:

(a)Liz’s conduct in refusing to provide an undertaking prior to the application for injunctive relief so as to avoid that necessity; and

(b)her allegedly unreasonable pursuit of an application for summary judgment with no realistic prospect of success, a clear factual dispute arising in this case.

[6]    In the background of the High Court proceedings is the substantive FPA claim before the Family Court. It involves four siblings the children of the deceased and the executor, who distributed the only major asset, the deceased’s former home, prior to

1      Anderson v Patterson [2024] NZHC 1499.

the 12-month period in the Administration Act 1969. It is clear, both from the material before me in the interlocutory hearing and from counsel’s memoranda the FPA claim is contested on both (potentially all) sides.

[7]    As noted, both parties in this Court are legally aided. Both have been represented by counsel throughout, albeit by different counsel at different stages of the proceedings and for different reasons. Sandra was initially privately represented by Mr Evans. She has been legally aided since Mr Tyrrell took carriage of the proceedings after the factual dispute over service came to light. Liz has been legally aided throughout. Initially she was represented and advised by the late Mr Andersen KC, latterly by Ms Douglass and Ms Gaskell.

[8]    It is unfortunate that notwithstanding representation by counsel throughout the parties were unable to negotiate an agreement obviating the need for injunctive relief pending determination of the FPA claim. This has caused delay in the substantive proceedings, although this was not solely due to the application for interlocutory relief.2

[9]    On the other hand, at the heart of this case is the unusual, and unfortunate, sequence of events between Mr Evans’ notification of intention to file the FPA claim and the distribution of the estate giving rise to the factual issue as to service. It is notable that Liz did not participate in any part of that chain of events except through the watching brief, it appears, of her then counsel Mr Andersen KC and there is no indication the FPA proceedings were served on Liz’s counsel until after the date in February 2023 when distribution was notified to the parties.

[10]   Mr Tyrrell submits that the exceptional circumstances here justify costs and even if the court does not consider the interim injunction proceedings meet that high threshold, the summary judgment application alone does.

[11]I am not persuaded this is so.

2      Delay was also caused by the sad circumstance of Mr Andersen’s untimely death.

[12]   The summary judgment application was heard together with and in response to the claim for injunctive relief. It was advanced on senior counsel’s advice and against the background of an unusual factual dispute.

[13]   That dispute included the executor’s sworn declaration that she had not in fact been served or notified having not received Mr Evans’ mid-January email annexing copies of the proceedings and confirmation they had been filed in the court just prior to Christmas. However, that email itself was sent after the expiry of the three month notice period under the Administration Act. It — and the factual dispute arising — would have been obviated had there not been the initial omission by Mr Evans to ensure prompt notification to the executor of the fact of filing of the proceedings — rather than simply counsel’s notification of his intention to file the same day, as did in fact occur but did not suffice as notice under the Act. Had notice properly been provided in accordance with the terms of the Administration Act, none of the unfortunate sequence of events which subsequently transpired nor the proceedings contesting them, would have occurred.

[14]   As noted, I accept that the case presents an unusual factual matrix. There is no dispute the executor clearly signalled her intention to distribute in the absence of confirmation proceedings had been filed and that counsel then acting for Sandra did reply two days later by an email transmitted from his system. But the executor deposes she did not receive the email and there was no subsequent communication to follow up the absence of any acknowledgement of receipt of that email or, importantly, of the undertaking requested not to distribute.

[15]Further, consistent with the executor’s evidence she did not receive Mr Evans’

23  January  2023  email  (which  was  not  copied  to  other  counsel  or  parties),  Mr Andersen KC referred in later correspondence to an email enquiry he had received from the executor following that, on 29 January 2023 as to whether he had knowledge of a claim being filed. Once distribution had occurred the effect of this was to place Liz in the position of ‘defending’ the proceeding at least as to the lawfulness of the distribution, which it is clear she did on legal advice from her then counsel.

[16]   The Court must be cautious not to assess reasonableness of conduct with the benefit of hindsight.3 Both parties have been represented by experienced counsel throughout. Neither personally possesses any legal experience as far as I am aware. Liz has been legally aided from the outset but was represented initially by King’s Counsel, on whose advice it is to be inferred she declined to provide an undertaking. Present counsel, Ms Douglass, has produced with her costs memorandum the advice of senior counsel Mr Andersen KC in support of the applications for legal aid. I accept, as Ms Douglass submits, the mere fact the defendant’s application for summary judgment was unsuccessful does not mean it was unreasonably pursued. I also accept there was an element of novelty in this case, arising out of its unusual facts, and that there is no suggestion Liz had any control over the distribution of the estate, nor did she act otherwise than in good faith.

Conclusion

[17]   Standing back and weighing all these factors, I am not persuaded that there are here exceptional circumstances justifying an award of costs against Liz as the legally aided defendant. Rather, it is appropriate that costs lie where they fall.

[18]I so order.

………………………………………

Preston J

Solicitors:

Patient & Williams, Christchurch for Plaintiff Medlicotts Lawyers, Dunedin for Defendant

Counsel:

G P Tyrrell, Barrister, Christchurch A J Douglass, Barrister, Dunedin

3      Ngati Tama Custodian Trustee Limited v Phillips [2020] NZCA 252 at [7], citing Reid v Castleton- Reid [2016] NZHC 1609 at [52].