Cartwright v Joseph - [2020] NZHC 455

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2017-488-000058

[2020] NZHC 455

IN THE MATTER of the Family Protection Act 1955

AND

IN THE MATTER

of the estate John Boyd Harrison

BETWEEN

CATHERINE DAILE CARTWRIGHT and SARAH BEVERLY 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:

A McDonald and C Rutledge for the Plaintiffs J Robertson for N Joseph

J Golightly for the Executors

Judgment:

10 March 2020

JUDGMENT OF MOORE J

[As to further orders]

This judgment was delivered by me on 10 March 2020 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2020] NZHC 455 [10 March 2020]

Introduction

[1] John Boyd Harrison, known as Tim, died on 23 September 2016. Under his will, the whole of his estate was left to his partner of 38 years, Nita Joseph. On 11 September 2018, I found Tim had breached his moral duty to make adequate provision for his daughters, Catherine Cartwright (“Cathy”) and Sarah Harrison (“Sarah”).1 I indicated an award of about 10 per cent each would be sufficient to remedy the breach.2 In a second judgment on 6 November 2018, I determined the form of the award.3

[2]Cathy and Sarah now apply for further orders in respect of this award.

Background

[3] The main asset of the estate is a large block of land comprising two sections, “609” and “610”. Nita operates a camping ground in the most valuable part of 609, referred to as “S11/1”. I considered it important that Nita could remain on that land and noted the executors should not be bound to the estate for too long. I took a provisional view that the best outcome would involve:4

(a)the subdivision of S11/1 from the remainder of 609; and

(b)the sale of the amalgamated title of 610 and the residue of 609.

[4]The parties filed further submissions about that proposed course of action.

[5] On 6 November, the structure of the proposal was settled, and I made orders for the executors of the estate to arrange the subdivision and sale.5 To support the subdivision, I ordered that the executors may create an easement servient to 609 along the northern boundary of 610. The executors estimated that the amalgamation, subdivision and sale would cost $112,000.6 Cathy and Sarah sought an order that the estate bear that cost without further deduction from their share, but I ordered that they

1 Cartwright & Anor v Joseph & Ors [2018] NZHC 2383.
2 At [36].
3 Cartwright & Anor v Joseph & Ors [2018] NZHC 2867.
4 At [50].
5 At [18].
6 At [10].

pay 20 per cent of those costs upon receipt of invoices relating to the required advice and works. I confirmed to the parties in the later…

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 [2020] NZHC 455
Case: [2020] NZHC 455
Decision Date: 10 March 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Catherine Cartwright and Sarah Harrison, sought further orders in respect of an award made under the Family Protection Act 1955 against the defendants, the trustees and executors of the estate of John Boyd Harrison. The original award was made in response to a breach of the testator's moral duty to make adequate provision for his daughters. The plaintiffs sought further orders to vary the original court orders regarding the subdivision and sale of the estate, which primarily consisted of two sections of land. The plaintiffs argued that the proposed subdivision was costlier and more complex than anticipated, and they proposed alternative methods of satisfying the award.

The court considered whether the proposed orders by the plaintiffs would be appropriate given the practical considerations involved in land transactions and the need for the executors to complete the subdivision and sale in a cost-effective and timely manner. The court also considered the costs dispute between the parties and the executors' refusal to pay certain costs and disbursements.

The court held that the orders sought by the plaintiffs went against the substance of the original court orders and would bind the executors to the estate for an unreasonable period of time, putting pressure on Nita to sell. The court found that the extra delays, costs, and consent requirements were not extraordinary for land transactions of this type and could not be practically avoided. The court further held that the executors should not be compelled to make the orders sought by the plaintiffs, as doing so would not be appropriate and would further delay the matter. In relation to the costs dispute, the court held that the executors were now well out of time to dispute specific costs or disbursements and that the costs existed as an enforceable debt against the estate.

The court dismissed the plaintiffs' application for further orders and directed the executors to pay the full amount of costs as ordered previously.

Orders