Dunham v Chambers - [2014] NZHC 9

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-002760 [2014] NZHC 9

IN THE ESTATE OF ELSIE ANNE CHAMBERS Deceased
BETWEEN RACHEL DUNHAM Applicant
ANDCHRISTOPHER EDWARD CHAMBERS Respondent

Hearing: On the papers

Counsel: R J Connell for Applicant
C R Andrews for Respondent

Judgment: 15 January 2014

JUDGMENT OF KATZ J [Costs]

This judgment was delivered by me on 15 January 2014 at 3:00pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Connell & Connell, Auckland
McVeagh Fleming, Auckland

DUNHAM v CHAMBERS [2014] NZHC 9 [15 JANUARY 2014]

Introduction

[1] Elsie Anne Chambers died in April 2011. Probate was granted in May 2011, appointing the respondent, Mr Christopher Chambers, as sole executor of the deceased’s estate. The applicant, Mrs Rachel Dunham, is Mr Chambers’ sister. She is a residuary beneficiary of the estate, along with Mr Chambers and their other siblings.

[2] On 25 July 2013, Mrs Dunham’s solicitor wrote to Mr Chambers asking him to provide a full accounting of his administration of the estate to date, within
10 working days of receiving the letter. Mr Chambers subsequently provided

Mrs Dunham’s solicitors with a statement of financial accounts on 13 August 2013.

[3] Mrs Dunham considered that the statements were neither full nor correct, and she filed an application under r 27.32 of the High Court Rules on 21 August 2013, seeking an order for the filing of accounts (“first application”). Mr Chambers consented to the orders sought and requested 20 working days to complete the accounts. Mrs Dunham agreed. Orders were made to that effect, by consent. The time for filing the accounts was subsequently extended to 30 working days, also by consent.

[4] Mr Chambers enlisted the services of a chartered accountant to assist, and provided an inventory and financial accounts of the estate on 29 October 2013. In Mrs Dunham’s view those accounts were also incomplete and incorrect. Her solicitor filed a further application on 5 November 2013, seeking the removal of Mr Chambers as an executor and the appointment of a replacement executor/administrator (“second application”). A complete audit of the administration of the estate from the date of the deceased’s death was also sought.

[5] The following day, Mr Chambers’ counsel filed a memorandum in reply. He advised that, prior to receipt of Mrs Dunham’s memorandum, Mr Chambers had been in the process of preparing an application to remove himself as an executor. This was not because he accepted the allegations of incompetence, but was rather due to the stress and tensions the office had caused him, including tensions with his sibling beneficiaries. The memorandum advised that Mrs Dunham had been advised

that such an application was imminent prior to filing her own application, which she acknowledges. Nevertheless, she proceeded to file and serve her own application to remove Mr Chambers as the executor.

[6] Mrs Dunham now claims costs for both applications and seeks costs against Mr Chambers personally on an indemnity or increased costs basis. Mr Chambers opposes Mrs Dunham’s…

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 Dunham v Chambers

Details

AGLC: Dunham v Chambers [2014] NZHC 9
Case: [2014] NZHC 9
Decision Date: 15 January 2014

CaseChat Overview and Summary

The case of Dunham v Chambers involved a dispute over the administration of the estate of Elsie Anne Chambers, who passed away in April 2011. Rachel Dunham, the applicant and a residuary beneficiary of the estate, sought an order for the filing of accounts and later, the removal of Christopher Chambers, the respondent and sole executor, from his position. The crux of the matter was the costs associated with the two applications filed by the applicant, which the respondent opposed. The primary legal issues were whether the applicant was entitled to indemnity costs against the respondent personally and if the respondent's costs should be paid by the estate.

The court considered the conduct of the respondent in relation to the applications. It was noted that the respondent had behaved co-operatively and reasonably, and there was no evidence of misconduct warranting an indemnity costs award against him. The court found that the appropriate course was to award scale costs on a 2B basis, to be paid out of the estate. The court also noted that the applicant's second application was likely premature, given that the respondent had already indicated his intention to seek removal as an executor. However, the court recognised that some duplication of costs might have occurred, as the respondent's application was presumably well advanced.

In relation to the respondent's costs, the court found that they were appropriately met by the estate, in line with the general principle that executors and administrators are entitled to have their actual and reasonable costs met from the estate. The court ordered that the respondent's costs in relation to both applications, along with any costs associated with his proposed application to remove himself as an executor, should be met by the estate on an indemnity basis.

The final orders of the court were that the applicant's costs in relation to the first and second applications were to be met by the estate on a category 2B basis, and the respondent's costs were to be met by the estate on an indemnity basis.

Orders