Brownlee v McCaslin HC Auckland CIV-2011-404-004822

[2011] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-004822

UNDER  Sections 44 and 21 of the Administration

Act 1969 and s 51 of the Trustee Act 1956

IN THE MATTER OF     the Estate of Aaron Raymond McCaslin

BETWEEN  NIKKI HELENA BROWNLEE Applicant

ANDDENISE MARY MCCASLIN Respondent

Counsel:         S Vazquez for Applicant

P Miller for Respondent

Judgment:      21 December 2011

JUDGMENT OF ASHER J

This judgment was delivered by me on Wednesday, 21 December 2011 at 4.45pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

S Vazquez, PO Box 101713, North Shore, Auckland 0745. Email:  [email protected]

DG Law Ltd, DX EP80503, Panmure, Auckland 1072. Email:  [email protected]

BROWNLEE V MCCASLIN HC AK CIV-2011-404-004822 [21 December 2011]

Introduction

[1]      The applicant Nikki Helena Brownlee seeks costs against the respondent

Denise Mary McCaslin.

Background

[2]      Ms  McCaslin  is  Ms  Brownlee’s  grandmother  and  the  executrix  and  the trustee  of  the  estate  of  Ms  Brownlee’s  late  father  Aaron  Raymond  McCaslin. Mr McCaslin died on 9 July 2006, when Ms Brownlee was 13 years old.

[3]     There has been no ongoing relationship between Ms Brownlee and her grandmother since Mr McCaslin’s death.   Ms Brownlee’s mother, Yvonne Rogers, deposed  that  since  December  2007  she  has  been  seeking  information  about Mr McCaslin’s estate from Ms McCaslin.

[4]      More  recently  Ms  Brownlee  has  herself  become  involved  in  seeking information about the estate.  She attains the age of 21 years in December 2012 and was entitled to receive her share of the estate at that point.   On 23 May 2011 her solicitor sent a written request to Ms McCaslin to provide her with a complete copy of the accounts of the estate by 30 May 2011.  The letter was sent by courier and required the signature of the recipient.  It was delivered at 11am on 28 May 2011 and signed for by Ms McCaslin.   There was no response from Ms McCaslin.   In her affidavit she deposed that she regarded the timeframe as “completely unrealistic” and put the letter to one side.  She did not respond.

[5]      Affidavits filed on behalf of Ms McCaslin set out efforts that were then made to communicate with Ms McCaslin by sending letters by courier (which were not collected from the Post Office) and by ordinary mail (which were not responded to). When the process server went to serve Ms McCaslin she was initially uncooperative.

[6]      Ultimately Ms Brownlee issued these proceedings by originating application. A notice of opposition and affidavit in support of that notice were filed.  However, the proceedings have now been settled.   Rather than specifically addressing the

orders sought relating to the provision of accounts and information and the removal of Ms McCaslin as trustee the memorandum sensibly settles all issues that exist between the parties by transferring Ms Brownlee’s share in the estate to her.

Discussion

[7]      The parties now seek costs, each blaming the other for the circumstances that led to the issue of the proceedings.   Ms McCaslin says that she was never intentionally uncooperative and that the issue of the proceedings was unnecessary and an overreaction.   Both parties argue about what happened since the issue of proceedings.  What is clear is that shortly after the issue of the proceedings a good deal of information was ultimately provided by Ms McCaslin to Ms Brownlee.

[8]      It  should  be  observed  that  there  is  no  evidence  of  any  wrongdoing  by Ms McCaslin in her financial dealings as a trustee. There is, however, clear evidence of a failure on Ms McCaslin’s part to respond promptly to reasonable requests from a beneficiary  for  information  about  the  estate.    The  outcome  of  the  proceedings reflects success on the part of Ms Brownlee.  While Ms McCaslin was not in fact removed as the trustee, Ms Brownlee gets her share of the estate and Ms McCaslin effectively, as far as she is concerned, has no further role to play.

[9]      I do  not  accept  the  submission  from  Ms  McCaslin  that  given  the  small amount of the estate (it was worth a little more than $70,000) it was not reasonable to issue the proceedings.  A beneficiary is entitled to issue an originating application seeking orders if a trustee is unreasonably refusing to provide any information about an estate.[1]   It is unfortunate that this situation arose.

[1] See for example Vincent v Stewart HC Auckland M671-IM02, 17 April 2003 at [51] and generally Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Brookers, Wellington,

2009) at [5.3](12).

[10]     I emphasise  that  I make no  legal  or moral  judgment  on  Ms  McCaslin’s performance as trustee and executrix of the estate, save in relation to the provision of information.  This decision is based on the fact that the general rule as to costs is that

they follow the event.  That is, that the party who fails with respect to a proceeding

should pay costs to the party who succeeds.[2]   Given the substance of the Court order, Ms Brownlee has succeeded and Ms McCaslin has failed.

[2] High Court Rules, r 14(2)(a).

[11]     In all the circumstances I consider Ms Brownlee to have been the successful party.  Costs should follow the event.  The trust corpus should not bear the cost of this proceeding, which resulted from a failure on Ms McCaslin’s part as trustee to provide information as required.  I direct that the respondent is to pay the plaintiff costs on a 2B basis, and that she has no right to indemnity from the trust.

……………………………..

Asher J