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…

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.

Continue reading Anderson v Patterson

Details

AGLC: Anderson v Patterson [2024] NZHC 2474
Case: [2024] NZHC 2474
Decision Date: 30 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Dunedin Registry, Sandra Marie Anderson brought a claim against Elizabeth Janet Patterson seeking injunctive and ancillary relief pending further proceedings in the Family Court under the Family Protection Act 1955. The dispute arose from the estate of Sandra's late mother, Elizabeth Bevin Patterson, with Sandra seeking additional provision from the estate, which Elizabeth opposed. The court was tasked with deciding whether Sandra was entitled to injunctive relief pending the Family Court proceedings and whether Elizabeth's application for summary judgment should be granted. The court also had to consider the appropriate allocation of costs between the parties, given both were legally aided.

The legal issues included whether Sandra was entitled to injunctive relief to prevent Elizabeth from distributing the estate, whether Elizabeth's application for summary judgment had a reasonable prospect of success, and whether there were exceptional circumstances justifying an award of costs against Elizabeth. The court examined the procedural history, including the timing of notifications and service of proceedings, and the reasonableness of Elizabeth's conduct in pursuing the summary judgment application.

The court found that Sandra was entitled to injunctive relief and dismissed Elizabeth's application for summary judgment, noting the factual dispute and the unusual circumstances surrounding the distribution of the estate. Regarding costs, the court considered the exceptional circumstances argument put forward by Sandra's counsel but ultimately concluded that the application for costs against Elizabeth was not justified. The court held that the appropriate allocation of costs was for each party to bear their own costs.

The court ordered that each party bear their own costs of the proceedings in the High Court.

Orders