Cartwright v Joseph - [2021] NZHC 560

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2017-488-000058

[2021] NZHC 560

IN THE MATTER of the Family Protection Act 1955

AND

IN THE MATTER

of the estate of John Boyd Harrison

BETWEEN

CATHERINE DAILE CARTWRIGHT and SARAH BEVERLEY HARRISON

Plaintiffs

AND

NITA WAIRANGI JOSEPH, BARRIE AGAR, BRETT HOGAN and TREVOR

DRAFFIN as trustees and executors of the estate of John Boyd Harrison

Defendants

Hearing: (On the papers)

Counsel:

Plaintiffs in Person

Johanna Robertson for Nita Joseph Juliet Golightly for the Executors

Judgment:

18 March 2021

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 18 March 2021 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2021] NZHC 560 [18 March 2021]

Background

[1] By way of summary, and as set out in my 12 February 2021 judgment, on 11 September 2018 I released a judgment in which I determined that John Boyd Harrison (“Tim”) had breached his moral duty to the plaintiffs, his daughters, Cathy and Sarah.1 I found they were entitled to provision in the order of 20 per cent of the estate (10 per cent each). I left open the question of how that award should be met by the estate and invited further submissions on that discrete point.

[2] On 6 November 2018, after receiving further submissions from the executors of the estate and the plaintiffs, I made orders.2 I reserved leave to the parties to apply for such other necessary orders or directions in the event any subdivision and/or sale was impeded for reasons outside the control of the executors, or if unforeseen costs arose.3 This was because certain real property held by the estate needed to be subdivided and sold to meet the plaintiffs’ award.

[3] On 6 September 2019, the plaintiffs then applied for further orders in respect of the award. This application was refused by me on 10 March 2020, on the grounds that the orders sought went against the substance of my original orders.

[4] By memorandum dated 24 January 2021, the plaintiffs again sought further orders. In my 12 February 2021 judgment, to which this costs judgment relates, I concluded that no further orders should be made. In coming to that decision, I made the following findings:

(a)there were serious procedural and evidential difficulties with the plaintiffs’ application;

(b)the application was not authorised by the limited grant of leave in the 6 November 2018 decision;

1      Cartwright & Anor v Joseph & Ors [2018] NZHC 2383.
2      Cartwright & Anor v Joseph & Ors [2018] NZHC 2867 at [18].
3      At [18(f)].

(c)the essence of the plaintiffs’ complaints that the executors and trustees had breached their duties, the remedy for which would arise via a separate claim; and

(d)I was functus officio.

[5] The application was dismissed. The executors now seek costs against the plaintiffs. The plaintiffs oppose any such order.

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 Cartwright v Joseph

Details

AGLC: Cartwright v Joseph [2021] NZHC 560
Case: [2021] NZHC 560
Decision Date: 18 March 2021

CaseChat Overview and Summary

The High Court of New Zealand heard a case concerning the estate of John Boyd Harrison, involving the plaintiffs, Catherine Daile Cartwright and Sarah Beverley Harrison, who sought a portion of the estate as provision for their father's breach of his moral duty. The defendants were Nita Wairangi Joseph, Barrie Agar, Brett Hogan, and Trevor Draffin, as trustees and executors of the estate of John Boyd Harrison. The dispute centred on the implementation of a previous court order that granted the plaintiffs 20 per cent of the estate. The plaintiffs sought further orders to address issues in executing the award, which the defendants opposed. The court was tasked with determining whether the plaintiffs' application was procedurally sound and warranted any additional orders, as well as deciding on the allocation of costs between the parties.

The primary legal issues involved the interpretation of the court's previous orders, the procedural validity of the plaintiffs' application for further orders, and the appropriateness of awarding costs to the defendants. The court had to assess whether the plaintiffs' application was within the scope of the leave previously granted and whether the procedural irregularities could be overlooked. Additionally, the court needed to determine the appropriate quantum of costs to be awarded, considering the nature and outcome of the plaintiffs' application.

In its judgment, the court held that the plaintiffs' application was flawed due to serious procedural and evidential difficulties, and it was not authorised by the limited leave granted in the earlier decision. The court found that the essence of the plaintiffs' complaints about the executors and trustees' duties should be addressed in a separate claim. The plaintiffs' application was dismissed as they were deemed to have acted outside the scope of the court's previous orders. The court ruled that the defendants were entitled to costs, rejecting the plaintiffs' argument that costs should be reduced or refused under the discretionary provisions of the High Court Rules. The court awarded costs of $1,434 to the defendants, finding that the plaintiffs' application, while not procedurally compliant, did not warrant a reduction in costs due to the significant procedural errors made.

The court ordered that the executors were to be awarded costs of $1,434. This decision was based on the procedural shortcomings of the plaintiffs' application and the court's finding that the defendants had a legitimate basis to oppose the application. The court's judgment clarified the boundaries of the procedural leave granted in earlier proceedings and reinforced the importance of adhering to court procedures when making applications.

Orders