Brown v Brown

[2018] NZHC 3265

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1241

[2018] NZHC 3265

BETWEEN

DENNIS FREDRICK BROWN

Applicant

AND

KEITH GRAHAM REX BROWN

Respondent

Hearing:	15 November 2018
Counsel:	B M Stewart and K N Sabine for Applicant D A Garrett and B Foster for Respondent
Judgment:	12 December 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 12 December 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Simpson Western, Auckland

Rainey Law, Auckland

BROWN v BROWN [2018] NZHC 3265 [12 December 2018]

[1]    This is an application by Dennis Brown to set aside my judgment of 4 May 2018. In that judgment, I made orders granting letters of administration to Dennis’ brother, Keith, for their mother’s estate, together with an order as to costs against Dennis personally. Dennis did not attend the hearing and it was evident to me Dennis obstructed Keith’s attempts to have their mother’s will properly executed.

[2]    Dennis, however, now says that he always remained interested in the proceedings and that the only reason he did not attend was because he had thought, from correspondence with Mr Garrett, Keith’s lawyer, that the hearing date was to be adjourned. Dennis’ counsel, Mr Stewart, maintains therefore that a miscarriage of justice has occurred and the orders that I made should be set aside. Mr Stewart, however, quite properly in my view, conceded that the best that he could hope for by way of further orders, was a refinement of them to require reporting by Keith to Dennis. He then focused his attention on the costs award which he says, in the circumstances, was manifestly unfair to Dennis.

[3]    Mr Garrett, for Keith, maintains that the entry of judgment was entirely appropriate, though he acknowledges that Dennis may have been confused about the hearing date. Mr Garrett also maintains, however, that the costs order should stay in place. He says the evidence is quite clear that Dennis was obstructive throughout and that he should pay the costs order.

Jurisdiction

[4]Rule 10.9 of the High Court Rules 2016 provides that:

Any verdict or judgment obtained when one party does not appear at the trial may be set aside or varied by the court on any terms that are just if there has, or may have been, a miscarriage of justice.

[5]The test under this rule was stated by the Court of Appeal in Russell v Cox:1

The test against which an application to set aside a judgment should be considered is whether it is just in all the circumstances to set aside the judgment, and the several factors mentioned in the judgments discussed should be taken, not as rules of law, but as no more than tests by which the

1      Russell v Cox [1983] NZLR 654 at 659.

justice of the case is to be measured, in the context of procedural rules whose overall purpose is to secure the just disposal of litigation.

[6]    Although the Court has a broad discretion, three factors point towards setting aside or varying a judgment: first, that the defendant has a substantial ground of defence, secondly, that the delay is reasonably explained, and finally that the plaintiff will not suffer irreparable injury if the judgment is set aside.2

Process followed: miscarriage?

[7]    Dennis has provided a detailed affidavit as to the background to his non- attendance. His chronology confirms, if anything, that it was made clear to him that the hearing would proceed on 4 May 2018.

[8]    On 26 April 2018, at 2.43 pm, the Registrar emailed Mr Garrett, Keith and Dennis as follows:

Dear Mr Brown,

I tried to phone you this afternoon.

Unfortunately, Justice Whata is unavailable in the week of 9 July 2018 and would not be available until later in the week of 6 August 2018.

The correspondence in this matter has been referred to the Civil List Judge, Justice Wylie. His Honour has minuted the file that a formal application to vacate the fixture and allocate a new date, on notice to the other party, will be required, with that application being considered by the allocated Judge (in this case Justice Whata).

(emphasis added)

[9]    There is then a response from Mr Garrett on 27 April at 10.15 am, to the Registrar and Dennis as follows:

Thank you for confirming by telephoning that if the fixture set down for 10 am on Friday 4 May is to be vacated, a formal application in that regard needs to be made …

All of that being the case, it is clearly in my client’s interests if the 4 May fixture goes ahead, and I have now rearranged my own commitments to allow that to occur. Please confirm that the matter will be heard, as scheduled, at 10 am on 4 May.

2      Mathieson v Jones CA198/92, 11 December 1992. See also Paterson v Wellington Free Kindergarten Association (Inc) [1966] NZLR 975 at 983.

[10]The Registrar then replied at 10.39 am:

Dear Mr Brown,

I refer to the message below received from Mr Garrett and confirm my email advice of 19 April 2018 that the hearing of this matter is set for 10.00 am, Friday, 4 May 2018.

In my email message, I also requested that you provide any response, to the 18 April 2018 memorandum of Counsel for the applicant, before 23 April 2018 at 12 noon. I have not received a response to that memorandum and that memorandum will now be referred to the Court for consideration.

(emphasis added)

[11]Dennis then responded:

Thank you for your update.

I refer to my email dated 22/03/2018 (copy attached), where I wrote “I am out of New Zealand for an indefinite period, but will return for the hearing. It will be appreciated if you can give as much time as possible to allow for booking of flights”.

Mr Garrett’s playing with dates, makes it almost impossible for me to get back in time. This is the 3^rd time he writes something and then a week or two later changes his mind to cause as much inconvenience as possible. I have attached your email dated 22/03/2018 which my response in the email above applies to where you ask “Would you please let me know if there are any dates over the next, say 7 to 8 weeks, when you could not be available (the court does not sit in the week of 2 April 2018)?”

My original offer of early July appeared acceptable to Garrett until the unavailability of the judge caused a further delay, hence his now trying for a hearing with a few days’ notice. I find the proposed change unacceptable. Garrett expects me to do what his client won’t do.

I ask that a date in early July be mutually agreed to? Regards

Dennis Brown Managing Director

[12]The Registrar responded at 12.14 pm as follows:

Dear Mr Brown and Mr Garrett,

I refer to Mr Brown’s email message below and the 18 April 2018 memorandum of Counsel for the applicant (seeking a direction that the defendant may be cross-examined).

In relation to Mr Brown’s email message, I confirm (as I indicated in my email message sent yesterday) that the correspondence in this matter was referred to the Civil List Judge, Justice Wylie. His Honour minuted that the file that a formal application to vacate the fixture and allocate a new date, on notice to the other party, would be required.

In relation to the memorandum of Mr Garrett, I attach a minute of Justice Whata dated today.

(emphasis added)

[13]   There is no further correspondence from Dennis about the fixture until after he has received the judgment. In that email, Mr Brown states that he is “appalled at the judgment and in particular the process written in the judgment”. He says his request for an adjournment had never been denied, let alone answered by any court staff.

[14]   There is also evidence that he sent an email, prior to obtaining a copy of the judgment, to Mr Foster (a solicitor at Rainey Law) stating:

I look forward to the court hearing to put this to rest.

[15]   It is evident therefore, as Mr Stewart submits, that Dennis did not fully appreciate that the 4 May fixture was going ahead. Looking more deeply into the background correspondence, it is relevant to note that the possibility of adjournment was in fact first mooted by Mr Garrett, not Dennis. In those circumstances, I am prepared to find that on the argument and evidence now available to me, Dennis did not intentionally fail to attend the hearing. A prima facie case for miscarriage has been established.

Relief?

[16]   The issue remains as to what I should do about it. Dennis has filed a very detailed affidavit setting out the background of his relationship with his mother and the various steps taken by him to manage her affairs after her death. He also refers to the contact that he had made with Keith, noting his disinterest in his mother’s affairs before and after her death. The affidavit repeats much of the material that was already available to me at the previous hearing. It acknowledges yet plays down the level of acrimony between Mr Garrett and Dennis prior to the lodging of the application and the hearing on 4 May.

[17]   I also have Keith’s affidavit. It repeats complaints about Dennis’ behaviour and raises issues about dealing with his mother’s property. Keith says that he instructed Mr Garrett to urge Dennis to take legal advice. He says he will suffer irreparable hardship if the judgment is set aside; he has already spent a considerable sum on legal fees. He also does not believe Dennis can succeed on the substantive issue of who should be the executor of their mother’s will, claiming that apart from organising their mother’s funeral, Dennis failed to discharge his responsibilities as executor prior to the 4 May judgment.

[18]   It is unnecessary to elaborate further. It is sufficient to state that Mr Garrett’s repeated strong demands for steps to be taken in relation to the estate were met with equally strong refusals. In fairness to Dennis, and now with the benefit of his counsel’s careful submissions,3 Dennis carried the burden of his mother’s care and then her affairs after her passing, without any assistance from Keith. The terseness of his responses to Mr Garrett need to be seen in that light and in a context where he was still grieving for his mother. It is regrettable that his counsel’s calm presentation of material was not available to me at the first hearing.

[19]   In any event, the key substantive issue to be resolved by the application remains whether letters of administration should be given to Keith, given that:

(a)Apart from specific bequests the will left the balance of the estate to be shared by Dennis and Keith;

(b)Dennis had taken no formal steps to execute the will and refused to take any of the steps sought by Keith in terms of administration of the estate;

(c)Issues as to the disposition of the proceeds of sale of their mother’s home and the whereabouts of various chattels remain unresolved; and

(d)Keith is prepared to administer the estate at his cost.

3      As noted by Mr Stewart, Dennis paid for the balance of his mother’s funeral expenses at his cost ($2,040.59) because the estate did not have sufficient money to cover the expense. He also stored her possessions for a period and took steps to tidy up his mother’s affairs, including closing bank accounts. He also had advice that probate was not necessary.

[20]   As noted, Mr Stewart, sensibly in my view, accepted that, in those circumstances, the grant of letters of administration to Keith remain appropriate. Mr Stewart, however, makes a proper point, namely, that there should be a reporting requirement to Dennis so that he is kept appraised as to the steps taken by Keith and the results of his administration. As I noted in my first judgment, Keith, by accepting letters of administration, places himself in a fiduciary position, vis a vis his brother, who like him is entitled to share in the estate. That proposed order is therefore entirely appropriate.

[21]   Given the foregoing, I propose to simply vary the orders pursuant to r 10.9. The jurisdiction to do so was, with respect, aptly summarised by Duffy J in Pulman v Orix New Zealand Ltd:4

[20] The view I have reached of the existing authorities is that at present whether a judgment irregularly obtained is set aside ex debito justitiae or an alternative approach, like that in Baker v State Insurance Office General Manager is followed, turns on the degree of irregularity in a particular case. This approach is consistent with the broad discretionary nature of the current relevant procedural rules in both the High Court and District Courts. It pays regard to the principle implicit in Anlaby, and the cases that follow it, that the existence of a miscarriage of justice is inherent in an irregularly obtained judgment. Nonetheless, it provides a better degree of flexibility than is to be found in the Anlaby approach by allowing, where possible, for minor irregularities in the obtaining of a judgment to be cured by varying it.

[22]   The grant of letters of administration to Keith remains, but subject to a condition that Keith must provide a report to Dennis as to the steps taken to execute the will and the outcome of this administration. A copy of any report is to also be filed with the Court. I also grant leave to Dennis and/or Keith to seek further relief from the Court if that is considered necessary. I should make it clear, however, that I do not expect the Court will be engaged on minor matters of dispute.

Costs

[23]   Finally, there is the issue as to costs of the previous hearing and this application. Dennis’ failure to attend the hearing, and his evident obstructiveness prior to the hearing, were primary drivers in making the costs order. Given, however, there

4      Pulman v Orix New Zealand Ltd (2008) 18 PRNZ 955.

was no intentional failure to attend the hearing, it is appropriate that I reconsider the costs award. In this regard, for the reasons expressed above at [18], a different, more sympathetic gloss is available in terms of Dennis’ pre-application and pre-hearing conduct. I also note that he acted on advice when not seeking probate.

[24]   Balanced against that, Dennis’ non-attendance was his mistake. While his innocent explanation provides a proper basis for reconsidering my decision, he must carry the cost of that mistake. I also consider that the costs on the substantive application and present application should otherwise be borne by the estate.

[25]I therefore amend the costs order as follows:

(a)Keith’s and Dennis’ costs on the original application are to be borne by the estate except in relation to the costs incurred by Keith for his senior counsel’s attendance at the 4 May 2018 hearing. Those shall be paid by Dennis on a 2B basis.

(b)Their costs on the present application are to be paid by the estate.

(c)Costs against the estate are awarded on an actual and reasonable basis.

(d)If necessary, quantum will be fixed by the Registrar.

[26]   I acknowledge Mr Garrett’s submission that the estate appears to be insolvent. But Keith (and Mr Garrett) must have appreciated that the estate may not have sufficient funds to pay out on the litigation. Dennis made it quite clear there was little, if any money in the estate and his primary reason for opposing the application – that the estate was too small to warrant probate - was not totally without merit.

Outcome

[27]The application is allowed in part.

[28]My orders of 4 May 2018 are varied as follows:

(a)Keith must report to Dennis on the administration of the estate;

(b)Both Keith and Dennis have leave to come back to the Court if necessary for further assistance.

[29]Amended costs orders are made at [25].

[30]   I make one final comment. What unfolded here is a classic example of parties failing to positively engage with each other. While Dennis must carry the burden of his mistake for failing to appear, a more sympathetic approach, one involving active agreement and engagement on the timing of the hearing, would have avoided the costs that have now been incurred. In this regard, I warn both parties that undue engagement with the Court’s processes in the future are likely to attract an award of costs against the losing party on an actual and reasonable basis.