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Cartwright v Joseph

Cartwright v Joseph

Case [2019] NZHC 1093 20 May 2019

Family Protection Act 1955

Civil Litigation & Procedure

Succession Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2017a-488-000058

[2019] NZHC 1093

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:

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

J Golightly for the Executors

Judgment:

20 May 2019

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 20 May 2019 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2019] NZHC 1093 [20 May 2019]

Introduction

[1]This is a costs judgment.

[2] John Boyd Harrison, known as Tim, died on 23 September 2016. He was survived by Nita Joseph (“Nita”), his partner of 38 years, and his two children, Catherine Cartwright (“Cathy”) and Sarah Harrison (“Sarah”).

[3] In his will of 17 June 2014, for which probate was granted on 1 December 2016, Tim left the whole of his estate to Nita, should she survive him. The estate was valued at just under $4 million; approximately $92,000 in cash and land valued at $3.8 million. The land consisted of a large block in Pataua South, east of Whangārei.

[4] This property comprised two titles; NA51D/609 (“609”) and NA51D/610 (“610”). 609 was approximately 44 hectares, while 610 spanned approximately 32 hectares. Nita operates a camping ground at the northern tip of 609. This is how she makes her living. The camping ground was located in the most valuable part of 609, which was referred to as “S11/1”.

[5] Cathy and Sarah applied under s 4 of the Family Protection Act 1955 (“the Act”) for provision under the estate. On 11 September 2018 I found Tim had breached his moral duty to Cathy and Sarah.1 I indicated an award of about 10 per cent would be sufficient to remedy the breach, noting any percentage-based division needed to be flexible enough to accommodate the practical considerations involved in making an award out of the estate.2

[6] The parties filed further submissions as to the form of the award. On 6 November 2018 I made the following orders:

(a)The executors are to arrange for the subdivision of 609 by separating the S11/1 area from the residue of the title and amalgamating the residue with title of 610.

1 Cartwright v Joseph [2018] NZHC 2383.
2 At [36].

(b)The executors were permitted to create an easement servient to 609 along the northern boundary of 610, either before or simultaneously with the subdivision of 609.

(c)The executors were responsible for the sale of the amalgamated title and were to distribute the proceeds of sale to the plaintiffs, Cathy and Sarah.

(d)The costs of steps (a)-(c) were to be borne as follows: 80 per cent by the estate, and 20 per cent by the plaintiffs. The plaintiffs…

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 [2019] NZHC 1093
Case: [2019] NZHC 1093
Decision Date: 20 May 2019

CaseChat Overview and Summary

In Cartwright v Joseph, the High Court of New Zealand was tasked with determining the appropriate costs award in a family protection case. The plaintiffs, Catherine Cartwright and Sarah Harrison, sought provision from the estate of their deceased father, Tim Harrison, under the Family Protection Act 1955. The court found Tim had breached his moral duty to Cathy and Sarah and ordered an award of approximately 10 per cent of the estate to each plaintiff. The court also ordered the subdivision and sale of certain land owned by the estate and directed the estate to bear 80 per cent of the costs of these steps, with the plaintiffs to bear 20 per cent.

The court was subsequently required to decide the appropriate costs award for the proceedings. Cathy and Sarah sought their actual legal costs to be paid out of the estate, while the defendants argued costs should lie where they fell. The court considered the relevant principles and authorities and concluded that, in family protection cases, costs should generally follow the event but may be paid out of the estate if the estate is large enough to bear the burden without substantially affecting beneficiaries. The court found that an award of scale costs, rather than indemnity costs, was appropriate in this case. The plaintiffs had been awarded a substantial sum from the estate, and the estate, while large, was not so large that it could bear the increased burden of the plaintiffs' actual legal costs without any substantial effect. An award of indemnity costs would result in unfairness to the residual beneficiary, Nita Joseph, who stood to bear the entirety of the added burden. The court therefore ordered the plaintiffs' costs on a 2B basis, to be paid out of the estate.

The court also clarified that the estate was to bear 80 per cent of the costs associated with the subdivision and sale of the amalgamated title, as previously ordered. The plaintiffs were to bear 20 per cent of these costs.

Orders