Cartwright v Joseph - [2018] NZHC 2867

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2016-488-000058

[2018] NZHC 2867

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:

Alex McDonald and Courtney Rutledge for the Plaintiffs Johanna Robertson for Nita Joseph

Juliet Golightly for the Executors

Judgment:

6 November 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 6 November 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2018] NZHC 2867 [6 November 2018]

Introduction

[1] On 11 September 2018 I found John Boyd Harrison (known as “Tim”) had breached his moral duty to his daughters Catherine Cartwright (“Cathy”) and Sarah Harrison (“Sarah”), the applicants.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 to accommodate the practical considerations involved in making an award out of the estate.2

[2] The main asset in the estate is a large block of land in Pataua South, comprising two sections I referred to in the judgment as “609” and “610”. A number of options for making an award out of the estate were proposed, most of which involved the subdivision and sale of at least one of the blocks. In the judgment, after canvassing the various options, I indicated a preference for “Option C”, which would involve:3

(a)the subdivision of the most valuable part of 609, “S11/1” (where the camping ground run by Tim and his partner Nita Joseph is located), from the remainder of the section; and

(b)the title of the residue of 609 being joined with the title of 610 and sold, with the proceeds going to Cathy and Sarah.

[3] I did not make final orders at that stage. I had reservations about doing so, as well as hope the parties could resolve the matter themselves, for reasons I expressed in the judgment:4
“However, I am conscious that this course attracted relatively little attention at the hearing. I am also conscious that not having had the opportunity to hear planning evidence, my orders might have unintended and/or unseen consequences. Alternatively, the parties, guided by my findings in this judgment, may agree to proceed with subdivision of the remainder of 609 and 610 before sale in order to maximise their joint returns or indeed some other option not specifically addressed in argument. Given the reasonable and realistic approach taken by Nita, and the lack of avarice on the part of Cathy and Sarah, I am confident that with the benefit of my finding on quantum the

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

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 [2018] NZHC 2867
Case: [2018] NZHC 2867
Decision Date: 6 November 2018

CaseChat Overview and Summary

The case Cartwright v Joseph involved a dispute regarding the estate of John Boyd Harrison, with the plaintiffs being his daughters, Catherine Cartwright and Sarah Harrison. The defendants included Nita Wairangi Joseph, along with other trustees and executors of Harrison's estate. The core issue before the court was to decide on the method of distributing a monetary award to the plaintiffs, representing a breach of moral duty by the deceased. The court had to determine whether the award should be a fixed cash amount or if it should be derived from the sale of specific estate assets. The court was also required to consider the financial implications of various options for distributing the award, including the costs associated with subdividing and selling estate properties.

The reasoning of the court focused on the flexibility needed in implementing the award, considering the practicalities of executing the judgment. The court acknowledged the potential for the sale of the amalgamated title to yield an amount close to the 10% of the estate each plaintiff was entitled to. The court rejected the notion of a fixed cash award, emphasizing the executors' duty to act in the best interests of all beneficiaries, including the plaintiffs. The court also considered the potential financial strain on the estate and Nita Joseph, leading to a decision to defer certain costs until after the summer trading season. Ultimately, the court ruled that the executors should handle the sale of the amalgamated title and distribute the proceeds to the plaintiffs, with cost-sharing between the estate and the plaintiffs. The court left the question of costs to be negotiated between the parties, reserving the right to intervene if an agreement could not be reached.

The final orders of the court mandated the executors to subdivide a portion of the estate land, create an easement for a road, and sell the amalgamated title. The proceeds from the sale were to be distributed to the plaintiffs, with costs shared between the estate and the plaintiffs. The executors were also granted the flexibility to defer certain construction costs until after the summer season. The court reserved the right to address any unforeseen circumstances that might impede the execution of the orders. The matter of costs was left open for negotiation between the parties, with a provision for further submissions if necessary.

Orders