Creser v Creser

[2003] NZCA 310

IN THE COURT OF APPEAL OF NEW ZEALAND

CA193/03

BETWEEN  RICHARD JOHN CRESER Applicant

ANDJANINE MICHELLE CRESER AND ANOR AS EXECUTORS NOMINATED IN THE WILL OF JESSIE JOY CRESER Respondents

Hearing:         6 October 2003

Coram:           Gault P Blanchard J McGrath J

Appearances: R J Creser in person

R Chapman for Respondents

Judgment:      8 October 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]      This matter was given an urgent fixture for the applicant, Mr R J Creser, to seek leave to appeal against the judgment of the High Court delivered by Gendall J on 2 September 2003.  The Court ordered (inter alia) that the applicant give security for costs as a condition of requiring the executors appointed in his mother’s will to apply for the grant of probate in solemn form.

[2]      In his judgment Gendall J dealt with certain other applications made by the applicant but he found those were premature or would be unnecessary in light of the procedure he contemplated in which application would be made to prove the will in

solemn form.

RICHARD JOHN CRESER V JANINE MICHELLE CRESER AND ANOR AS EXECUTORS NOMINATED IN THE WILL OF JESSIE JOY CRESER CA CA193/03 [8 October 2003]

[3]      On 29 September 2003 Wild J gave directions including that the applicant should have further time to give security for costs.  That time expired but this Court ordered a stay pending the hearing of the application for leave to appeal to this Court out of time from the judgment of Gendall J.

[4]      At the start of the hearing in this Court the applicant advised that he was prepared to give security for costs in appropriate form and did not wish to proceed with his appeal against the order requiring security.  After an adjournment a revised form of assignment by way of charge, acceptable to the parties, was tendered.  This meant the matter could be resolved effectively by consent.  On the execution of the deed, which was attended to before the Registrar, and upon Mr Chapman for the executors undertaking to raise no issue of the time within which security was given and to apply for the grant of probate in solemn form, the application for leave to appeal against the order requiring security is dismissed.

[5]      The applicant advised that he still wishes to have leave to appeal against the decision of Gendall J  on the other matters dealt with including costs.   We are satisfied that, apart from the costs order, those are matters that can be pursued in the High Court once an application is made for grant of probate in solemn form.  They relate to disclosure and temporary administration.  Mr Creser accepted that.  But he is  anxious  to  challenge  the  award  of  costs  made  against  him  by  Gendall  J  of

$5,843.50.

[6]      All other matters now having been resolved in a practical way, we are not prepared to grant special leave to appeal out of time against a discretionary order for costs of less than $6,000 and, accordingly, we dismiss the application also in that respect.

[7]      Mr Chapman sought costs on the present  application.   After hearing the parties we consider the executors are entitled to costs but, because of the matters raised by the applicant, we fix costs, lower than would ordinarily apply, of $2,000.

Solicitors:

Johnston Lawrence, Wellington, for Respondents