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Crawford v Phillips

Crawford v Phillips

Case [2018] NZCA 351 6 September 2018

Adverse Possession

Executors & Administrators

Wills & Testamentary Capacity

Costs

Succession Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA399/2017
[2018] NZCA 351

BETWEEN	JOHN ERNEST CRAWFORD AND PHILIP SAMPSON WELLS AS EXECUTORS OF THE ESTATE OF KRUZO PHILLIPS Appellants
AND	DORIS PHILLIPS AS EXECUTOR OF THE ESTATE OF JOHN YUKICH Respondent

Court:	Asher, Wylie and Thomas JJ
Counsel:	A J Steele for Appellants D J Blaikie for Respondent
Judgment: (On the papers)	6 September 2018 at 11 am

JUDGMENT OF THE COURT (COSTS)

The fair and reasonable actual costs and disbursements of the appellants and respondent are to be paid by the estate of Kruzo Phillips.

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REASONS OF THE COURT

(Given by Asher J)

In its judgment of 22 June 2018 this Court dismissed the appeal of the appellants, John Crawford and Philip Wells.[1] They were executors of the estate of Kruzo Phillips. Mr Crawford was a friend of Mr Phillips. Mr Wells was Mr Phillips’ solicitor and he drafted Mr Phillips’ will (the Will). The appeal was against the dismissal of a defendant summary judgment application that the appellants had filed, in which Associate Judge Bell had held that certain provisions in the Will were invalid for uncertainty.[2] The effect of our decision dismissing the appeal is that there is a partial intestacy in relation to the Will.
[1]Crawford v Phillips [2018] NZCA 208.
[2]Phillips v Crawford [2017] NZHC 1478, [2017] NZAR 1233 at [60].
The appellants have stated that they will treat this Court’s decision as determinative of the validity of the provisions of the Will, notwithstanding that the appeal concerned summary judgment. That approach has been signalled to the High Court, and any necessary consequential orders relating to the Will will be made by that Court.
In dismissing the appeal we recorded in relation to costs:
[45] At the request of Mr Blaikie for the respondent, and without objection from Mr Steele, we reserve the question of costs to allow the parties to negotiate and reach agreement. If agreement cannot be reached on costs the parties are to file submissions within 30 working days of the date of this judgment.
The parties have been unable to reach agreement, and we have now received submissions on costs from them. Mr Steele for the appellants submit that “fair and reasonable” indemnity costs and disbursements should be paid by the estate to Messrs Crawford and Wells, despite the fact that the appeal has failed. They submit that the respondent should have costs out of the estate on the same basis. In contrast, Mr Blaikie for the successful respondent submits that scale costs should follow the event in the usual way. He submits that the appellants should be personally liable to pay the respondent’s costs, and that the appellants should not be entitled to claim their legal costs against the estate.

Our analysis

It has long been the rule in New Zealand and England that costs follow the event. In this Court this is now reflected in r 53A(a) of…

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 Crawford v Phillips

Details

AGLC: Crawford v Phillips [2018] NZCA 351
Case: [2018] NZCA 351
Decision Date: 6 September 2018 at 11 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by John Crawford and Philip Wells, executors of the estate of Kruzo Phillips, against the dismissal of their defendant summary judgment application. The appeal concerned the validity of certain provisions in Kruzo Phillips' will. The Court dismissed the appeal, resulting in a partial intestacy in relation to the will. The court then addressed the issue of costs, where the appellants argued that "fair and reasonable" indemnity costs and disbursements should be paid by the estate, while the respondent argued that scale costs should follow the event in the usual way. The Court noted that costs generally follow the event, but special principles apply to the Court's discretion when there is a contest concerning a will. The Court held that the fair and reasonable actual costs of the unsuccessful appellants should be paid by the estate and that the respondent's costs are also to be met by the estate. The Court acknowledged that the only significant asset of the estate is the farm at Hokianga, which is subject to a "management interest" in favour of Mr. Crawford. The Court made its order for costs to be paid by the estate, leaving it to the parties to determine how it will be given effect.

The Court of Appeal of New Zealand considered the appeal and addressed the issue of costs in the case of Crawford v Phillips. The Court held that the fair and reasonable actual costs of the unsuccessful appellants should be paid by the estate, and the respondent's costs are also to be met by the estate. The Court distinguished between Mr. Wells' capacity as an executor and as the solicitor who drafted the Will, and held that the appellants were acting in a manner consistent with their positions as executors. The Court acknowledged that the only significant asset of the estate is the farm at Hokianga, which is subject to a "management interest" in favour of Mr. Crawford. The Court made its order for costs to be paid by the estate, leaving it to the parties to determine how it will be given effect.

Orders