Carrick v Carrick

[2020] NZHC 3005

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-424

[2020] NZHC 3005

UNDER

the Administration Act 1969

IN THE MATTER

of the estate of Shayne Brett Carrick

BETWEEN

KELSI JAYNE CARRICK and KAYTI ROSE CARRICK

Plaintiffs

AND

JONELLE MAREE CARRICK

Defendant

Hearing:	12 November 2020
Counsel:	A J Summerlee and F A Trowbridge for the Plaintiffs S H Marsden for the Defendant
Judgment:	12 November 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 12 November 2020 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 12 November 2020

CARRICK v CARRICK [2020] NZHC 3005 [12 November 2020]

[1]                 In this proceeding, the plaintiffs seek an order by way of summary judgment removing the defendant as executrix and trustee of the estate of their late father Shayne Brett Carrick.

[2]                 Prior to the first call of the application, an agreement was reached between counsel that allowed orders to be made by consent.

[3]Accordingly, by consent, the following orders are made:

(a)An order removing the defendant, Jonelle Maree Carrick, as executrix and trustee of the Estate of Shayne Brett Carrick.

(b)An order appointing Perpetual Trust Limited as sole executor and trustee of the Estate of Shayne Brett Carrick.

[4]                 While there is not a consent from Perpetual Trust Ltd on the file to be so appointed, Mr Summerlee, counsel for the plaintiff confirmed to me that Perpetual Trust Ltd had consented to being appointed.

[5]That left the issue of costs.

[6]                 The defendant has filed a comprehensive notice of opposition and an affidavit in opposition to the application, but has agreed to the orders, effectively out of pragmatism and resists any award of costs.

[7]                 Whether costs should follow the event, and perhaps more significantly if they do, who should bear those costs is not a straightforward matter given that it necessarily involves some assessment of the merits of the parties’ respective positions.

[8]                 With the agreement of counsel, I adopted the following course. Perpetual Trust Ltd is directed to file a report for my attention and to provide a copy to the parties in respect of the administration of the estate by Jonelle Maree Carrick, in particular, in relation to the issues raised in these proceedings. That report to be filed by the end of February 2021, but leave is reserved for Perpetual Trust Ltd to seek an extension of time in that regard, should it prove necessary. I made that suggestion to counsel on

the basis that the contents of that report would be influential in the outcome of costs and the report is requested on that basis.

[9]                 This proceeding is adjourned to the 11am List on Thursday 25 March 2021, by which time the report should have been received. Once the report is to hand, counsel can see if they can settle costs, failing which directions as to how issues as to costs will be dealt with, will be made at the next call.

Associate Judge Lester

Solicitors:

Parry Field, Christchurch [for Plaintiffs]

Mortlock McCormack Law, Christchurch [for Defendant]

Copy to counsel:
S H Marsden, Barrister, Christchurch