AP v Lucas - [2021] NZHC 2949

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1513

[2021] NZHC 2949

BETWEEN
AP

Appellant

AND

COLIN JAMES LUCAS

Respondent

Hearing: 23 September 2021 (Via VMR)

Appearances:

L T Meys for the appellant

P J Stevenson for the respondent S A Grant for the interested party

Judgment:

2 November 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 2 November 2021 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

AP v LUCAS [2021] NZHC 2949 [2 November 2021]

Introduction

[1] The appellant, Ms P, appeals a costs judgment delivered in a Family Court proceeding.

The substantive proceeding

[2] In the Family Court proceeding, Ms P sought further and better provision from her late father’s estate under s 4 of the Family Protection Act 1955 (the Act).

[3] The deceased bequeathed to his widow, Ms L, an apartment, motor vehicle and other personal effects with a value of some $1 million. The deceased and Ms L had met two years before his death. They married a few days before the deceased passed away. Pursuant to an agreement under the Property (Relationships) Act 1976, Ms L was also paid $500,000 upon the deceased’s death.

[4]The deceased left Ms P some chattels of sentimental value, worth around

$10,000. The residue of the estate, then worth about $2.1 million, was left equally to Ms P’s two daughters (the deceased’s granddaughters).

[5]In the Family Court, there were three key issues:

(a)Had the deceased breached his moral duty to make provision for Ms P?

(b)If so, what further provision should be made for Ms P?

(c)From what source should that further provision be made?

[6] Judge L J Ryan concluded there had been a breach of moral duty. He found that further provision ought to be made in favour of Ms P, but in a way that interfered as little as possible with the intentions of the deceased, particularly in relation to his widow Ms L. The Judge accordingly left the bequests to Ms L unchanged. In relation to the residue of the estate, Judge Ryan ordered that it be divided into thirds, with Ms P and the granddaughters each receiving one-third. This effectively increased Ms P’s share of the estate from around $10,000 to $700,000.

Costs judgment

[7] After delivery of Judge Ryan’s substantive judgment, the parties made submissions on costs.

[8] Ms L sought payment of 55 per cent of her actual costs from the residue of the estate. Ms P sought payment of her actual costs of $97,487.59. She sought an order either that Ms L pay 100 per cent of those costs or that Ms L contribute pro-rata to the costs of the estate, the granddaughters and Ms P. The respondent executor took…

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 AP v Lucas

Details

AGLC: AP v Lucas [2021] NZHC 2949
Case: [2021] NZHC 2949
Decision Date: 2 November 2021

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Ms P against a Family Court costs judgment. The appeal arose from a Family Court proceeding in which Ms P sought further and better provision from her late father's estate. The Family Court Judge had found that there had been a breach of the deceased's moral duty to Ms P and ordered that Ms P and her two daughters (the deceased's granddaughters) each receive one-third of the residue of the estate. The Judge declined to order that any party bear any of the costs claimed. Ms P appealed the costs judgment, contending that she should be awarded her actual costs of $97,487.59 either from Ms L, the deceased's widow, or from the estate. Ms L opposed the appeal, and the executor opposed the appeal to the extent it would result in any reduction in the amount of the residuary estate. The appeal was allowed, and the estate was ordered to pay Ms P's costs of $97,487.59. Ms L was entitled to costs from Ms P on the appeal, but Ms P was not entitled to be reimbursed from the estate for her costs liability to Ms L on the appeal.

The court considered the scope of appellate review of a costs decision and whether the Family Court Judge erred in declining to order that Ms L pay all or some of Ms P's costs or that Ms P's costs be paid from the estate. The court held that there was no basis on which it would be appropriate to order costs against Ms L in favour of Ms P as Ms L did not fail with respect to the proceeding. The court also held that the Family Court Judge did not take into account relevant considerations in declining to order that Ms P's costs be paid from the estate, such as the longstanding practice that the estate bear these costs, the size of the estate, and that any award to Ms P is likely to filter down to her daughters in due course. The court concluded that the overall just outcome was that Ms P's costs should be paid from the estate, on an indemnity basis.

Orders