Courteney v Pratley - [2017] NZHC 3285

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2013-485-5912 [2017] NZHC 3285

UNDER THE FAMILY PROTECTION ACT 1955

IN THE MATTER OF

THE ESTATE OF JOAN AYLEEN COURTENEY

BETWEEN

STEVEN COURTENEY First Plaintiff

AND

KLAUDIA ARIANE COURTENEY Second Plaintiff

AND

LANCE HOWARD PRATLEY AS TRUSTEE AND EXECUTOR OF THE ESTATE, REPLACING STUART COURTENEY, FORMER EXECUTOR Defendant

Hearing: 9 November 2017

Counsel:

K Johnston QC for the Plaintiffs
R Fowler QC for Defendant

Judgment:

21 December 2017

JUDGMENT OF CULL J

[1] Following my judgment of 23 May 2017,1 a further hearing was reconvened for the parties to make submissions on my provisional views on the payment of the
estate’s liabilities, expressed in the latter part of my judgment.2

1 Courteney v Pratley [2017] NZHC 1761.
2 At [59] – [71].

COURTENEY v PRATLEY [2017] NZHC 3285 [21 December 2017]

[2] This judgment concerns one issue only and that is whether it was necessary for Mr Pratley as executor/trustee to take steps to actively defend a $36,000 claim filed in the District Court by the first plaintiff, Steven Courteney, for expenses from his father’s estate.

[3] Mr Pratley, after his appointment, instructed counsel to defend the claim in the District Court, after the former trustee, Stuart Courteney, had commenced the defence. Apart from filing submissions prior to the defended hearing, Stuart had become less interested and did not wish to take any further steps, including not coming to New Zealand to give evidence in support of his pleaded defence. The question arising of whether Mr Pratley is entitled to be indemnified from the New Zealand assets of the estate, in respect of his costs and expenses incurred in defending Steven’s District Court claim, will be determined by the finding on whether it was necessary to take those steps.

[4] The question of whether Mr Pratley’s costs and expenses were reasonable, in respect of the administration of the estate, is to be determined by an experienced practitioner dealing with estates. A determination from this Court is not required.

Agreements reached on liabilities

[5] This decision should be read with the principal decision, where the background facts, concerning the Family Protection Act 1995 claim, are fully canvassed.3
Following the principal judgment, counsel for the parties have each agreed on the following orders under s 21 of the Administration Act 1969:

(a) Mr Pratley is to be discharged from his office as executor of the estate;

and

(b) Mr Steven Courteney is to be appointed to the office of executor.

3 Courteney, above n 1.

[6] The parties also agreed that Steven Courteney should receive the New Zealand-based assets of the estate of the late Joan Courteney, less the following unpaid items:

(a) the estate’s liability for income tax at a sum to be determined; and

(b) such further sum, if any, payable to Mr Pratley, over and above the

$30,000.00 already paid from the New Zealand-based assets of the estate on…

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 Courteney v Pratley

Details

AGLC: Courteney v Pratley [2017] NZHC 3285
Case: [2017] NZHC 3285
Decision Date: 21 December 2017

CaseChat Overview and Summary

Courteney v Pratley is a dispute about the administration of an estate and whether the executor should be reimbursed for costs incurred in defending a District Court claim. The hearing was before Cull J, who was also responsible for the principal decision, which provides the background to the case. The Court heard submissions from counsel for the parties, Johnston QC for the plaintiffs and Fowler QC for the defendant. The only issue for the Court to decide was whether the defendant, Mr Pratley, was required to defend the District Court claim filed by Steven Courteney. If the Court found that the defence was necessary, then Mr Pratley would be entitled to be indemnified from the estate for his costs and expenses incurred in defending the claim. The Court held that it was not necessary for Mr Pratley to defend the District Court proceedings and that he was not entitled to be indemnified from the estate for his costs and expenses. The Court found that Mr Pratley had acted in difficult circumstances but that his actions were not necessary or reasonable. The Court also found that Mr Pratley could have sought a Beddoe application for directions from the Court, which may have protected his costs and expenses. The parties agreed on certain orders, which were made by the Court.

Orders