Critchley v Saunders - [2014] NZHC 1113

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000005 [2014] NZHC 1113

UNDER the Family Protection Act 1955

IN THE MATTER OF

Appeal against decision of 27 November
2013 on Costs [2013] NZFC 9711

BETWEEN

SUZANNE RUTH CRITCHLEY First Appellant

ALFRED ROBERT SAUNDERS Second Appellant

AND

ALMA JEAN SAUNDERS Respondent

Hearing: 20 May 2014

Appearances:

Appellant Saunders in person
W Patterson for Respondent

Judgment:

23 May 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 23 May 2014 at 10.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

CRITCHLEY & Anor v SAUNDERS [2014] NZHC 1113 [23 May 2014]

Introduction

[1] On 26 February 2010, Judge LJ Ryan issued a reserved decision in a claim brought by a widow, Alma Jean Saunders (Mrs Saunders), under the Family Protection Act 1955 against the trustees and executors of the estate of her late husband, Alfred Robert Saunders (known as Mr Bob Saunders). He found that there had been a breach of moral duty by Mr Bob Saunders to adequately provide for the maintenance and support of his widow. Various orders were made to remedy the breach of moral duty.

[2] In the substantive judgment, Judge Ryan directed that Mrs Saunders’ reasonable costs were to be met by the estate. No orders were made as to the payment of other parties’ costs. Leave was also reserved to any party to apply on 7 days notice for further orders or directions to give better effect to or implement the judgment.

[3] Over three years later, on 24 June 2013, a former trustee and executor of the estate, Mr Bob Saunders’ son, also named Alfred Robert Saunders (known as Mr Rob Saunders), made an application for further directions or orders in respect of costs. On 27 November 2013, Judge Ryan issued a further decision on the issue of costs.

[4] In the costs judgment, Judge Ryan referred to Mr Rob Saunders as applying for an order for costs in his capacity as executor of his father’s estate and as seeking not only reimbursement of all his expenses as a trustee and executor of the estate, but also a contribution towards his legal costs in respect of the Family Protection Act proceeding (in which he took part as a residuary beneficiary).

[5] Judge Ryan first of all determined that he had no jurisdiction to determine whether the costs that Mr Rob Saunders incurred in relation to his duties as executor and trustee should be met in whole or in part from the estate. Judge Ryan continued:

[7] Insofar as costs incurred by Mr Saunders in the Family Protection proceedings are concerned, I made a ruling on the issue of costs and I found that costs should be awarded in favour of the applicant against the estate. Although I did not say so, because it was not argued in front of me, by implication that meant that Mr Saunders, and his co-executor and trustee, Mr

Gambrill, for that…

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 Critchley v Saunders

Details

AGLC: Critchley v Saunders [2014] NZHC 1113
Case: [2014] NZHC 1113
Decision Date: 23 May 2014

CaseChat Overview and Summary

In the case of Critchley v Saunders, Suzanne Ruth Critchley and Alfred Robert Saunders, as residuary beneficiaries of the estate of Alfred Robert Saunders, appealed against a decision on costs made by Judge Ryan. The respondents were Alma Jean Saunders, the widow of the deceased. The appeal focused on whether the appellants should receive reimbursement of their legal costs from the estate, similar to the costs awarded to the respondent. The appellants argued that it was just and fair that they receive their costs, given the financial and emotional impact of the legal action on them. They also pointed out that they had made settlement offers before the hearing, which were not accepted by the respondent.

The court examined the legal issues raised by the appellants, including whether Judge Ryan had misdirected himself as to the capacity through which Mr Rob Saunders was seeking costs, if the ruling about Mr Rob Saunders’ costs as trustee should be set aside, and if the issue of costs was res judicata. The court found that the appellants had failed to demonstrate that Judge Ryan had acted on a wrong principle, failed to take into account some relevant matter, taken account of some irrelevant matter, or was plainly wrong. Consequently, the appeal was dismissed, and costs were payable to Mrs Saunders on a 2B basis in respect of this appeal.

The court held that Judge Ryan did not err in ordering that Mrs Saunders' costs were to be met by the estate, which effectively found that no other costs were to be met. The court also found that Mrs Saunders was the successful party in the case, as she received a declaration that Mr Bob Saunders had breached his moral duty to make adequate provision in his will for her proper maintenance and support. Furthermore, the court held that it was not just and fair to pay the appellants' costs out of the estate, as it would substantially alter the balance sought to be struck by Judge Ryan and leave Mrs Saunders without adequate capital funds for her maintenance.

Orders