Ellin v Public Trust - [2018] NZHC 1082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1172

[2018] NZHC 1082

BETWEEN
CHRISTINE ANNE ELLIN, JOHN

CAMPBELL GREENLEES, MICHAEL LENNOX GREENLEES
Plaintiffs

AND

THE PUBLIC TRUST

First Defendant

DERMOT RICHARD BLAKE

Second Defendant

Hearing: On the papers

Counsel:

S J Callanan for the Plaintiffs

G Traves for the First Defendant
J Strauss for the Second Defendant

Judgment:

17 May 2018

JUDGMENT No 2 OF PALMER J

This judgment is delivered by me on 17 May 2018 at 11 am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
Lewis Callanan, North Shore City John Strauss, Barrister, Auckland North Harbour Law, Orewa

ELLIN v THE PUBLIC TRUST No 2 [2018] NZHC 1082 [17 May 2018]

Judgment and clarification

[1] In this proceeding, the plaintiffs alleged the deceased, Ms Doreen Greenlees, lacked testamentary capacity and was subject to undue influence by Mr Dermot Blake, in making a will on 28 September 2015. The Public Trust, as first defendant, accepted the deceased lacked testamentary capacity based on a report it commissioned from Dr Jane Casey of 5 November 2017. On 28 February 2018, after obtaining a second opinion, Mr Blake as second defendant also accepted that. The proceeding was discontinued.

[2]In a costs judgment of 12 April 2018, I stated:1

The plaintiffs could have sought full solicitor-client costs but have not. I award costs to the plaintiff, who has succeeded, on a 2B basis as they request. It is reasonably that expert advice be taken to determine the question of testamentary capacity. The Public Trust consented to the application once Dr Casey’s report was available. Accordingly, I direct the half of the costs payable by the Public Trust as trustee can be paid out of the estate.

I direct the half of the costs payable by Mr Blake be paid out of the estate also, in relation to all those steps up until his response to the Calderbank offer. After that point, I consider it is fair for Mr Blake to bear personally the cost of the additional steps in the proceedings that were required only to satisfy him of the validity of the application. Those steps appear to be the updating memorandum of plaintiffs for the duty judge list and appearance at the duty judge list.

[3] The parties subsequently sought clarification of the cost award. In a minute of 26 April 2018, I clarified:

(a)The half of the costs awarded against Mr Blake, payable out of the estate, should be paid before the residual estate is distributed, reflecting my view that it was not unreasonable for Mr Blake (and the Public Trust) to test the application for recall of probate until Dr Casey’s report was available and the Calderbank offer was made and rejected. After that it was unreasonable and Mr Blake must pay, personally, the costs awarded from that point.

1 Ellin v The Public Trust [2018] NZHC 667 at [12].

(b)The judgment…

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 Ellin v Public Trust

Details

AGLC: Ellin v Public Trust [2018] NZHC 1082
Case: [2018] NZHC 1082
Decision Date: 17 May 2018

CaseChat Overview and Summary

The High Court of New Zealand in Auckland heard the case of Ellin v The Public Trust, where the plaintiffs Christine Anne Ellin and John Campbell Greenlees and Michael Lennox Greenlees alleged that Doreen Greenlees, who had died, lacked testamentary capacity and was subject to undue influence by Dermot Richard Blake in making a will. The Public Trust, as the first defendant, and Dermot Richard Blake, as the second defendant, accepted that Doreen Greenlees lacked testamentary capacity based on a report commissioned by the Public Trust from Dr Jane Casey and a second opinion obtained by Blake. The proceeding was subsequently discontinued.

The legal issues the court had to decide were primarily concerned with the allocation of costs between the parties. The plaintiffs sought clarification of the cost award, arguing that the residuary estate, which would otherwise largely be distributed to the plaintiffs, would fund all the Public Trust’s costs, Blake’s costs, and the plaintiffs’ costs when the plaintiffs succeeded in having probate recalled. The Public Trust and Blake argued that their costs should be paid from the residuary estate.

The court, after reviewing the relevant case law and principles of New Zealand civil law, decided that it was not unreasonable for Blake to test the application for recall of probate until after Dr Casey’s report was available and the Calderbank offer was made and rejected. Accordingly, the court ruled that the costs awarded against the defendants should be met out of the estate until that point. However, the court found that it had been too hasty in treating Blake’s own costs the same as the defendants’ costs in the minute of 26 April 2018. While the losing parties were properly relieved from the costs of their successful opponents, the court did not consider the estate should bear Blake’s own costs, as it would effectively result in the plaintiffs bearing all the costs of the litigation despite their success. The court clarified that the successful parties’ costs would be paid out of the estate rather than by the defendants, and the defendants’ costs would lie where they fall.

The court concluded that its orders accorded with the interests of justice, and no further costs were awarded in relation to the memoranda.

Orders