Emery v Thorn - [2018] NZHC 3164

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000389

[2018] NZHC 3164

UNDER The Declaratory Judgments Act 1908 and Property (Relationships) Act 1976

BETWEEN

ELIZABETH EMERY by her Litigation Guardian, DAVID DOMINIC RICE

Plaintiff

AND

LEO HAROLD THORN

First Defendant

TONY JOHN THORN

Second Defendant

Hearing: On the papers

Judgment:

4 December 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 4 December 2018 at 12.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:Kiely Thompson Caisley, Auckland for the Plaintiff Ryan Law, Te Aroha for the First and Second Defendants

Counsel: A Gilchrist, Auckland for the Plaintiff
D J Taylor, Hamilton for the First and Second Defendants

EMERY v THORN [2018] NZHC 3164 [4 December 2018]

Introduction

[1] The plaintiff, Ms Elizabeth Emery, applies for an order her actual and reasonable costs should be met from the estate. This application follows settlement. The order sought in the substantive proceedings was made by consent. The defendants oppose and say costs should lie where they fall.

Background

[2]Ms Sheryl Thorn died intestate on 16 September 2014.

[3] Ms Elizabeth Emery applied to this Court for a declaration (“declaration proceedings”) she was living together with Ms Thorn in a de facto relationship at the time of her death.1 This was necessary to determine Ms Emery’s application for letters of administration. Per r 27.35 of the High Court Rules 2016, de facto partners have priority above children in determining applications for letters of administration.

[4] Ms Emery now suffers from several conditions. She lacks the capacity to manage her own affairs. On 14 March 2018, shortly after the statement of claim was filed, Courtney J appointed Ms Emery’s solicitor as her litigation guardian.2

[5] Mr Leo Thorn and Mr Tony Thorn, the defendants and Ms Thorn’s sons, opposed Ms Emery’s application. One or both of them had separately applied for letters of administration. They did not accept Ms Emery was in a de facto relationship with Ms Thorn at the time of her death. Rather, they contended the relationship ended six or seven years before Ms Thorn’s passing.

[6] The parties settled before a statement of defence was filed. The Court made the declaration sought by Ms Emery by consent.3 The defendant(s) also agreed to withdraw their application for letters of administration and to consent to the appointment of Mr Philip Allen, a solicitor from Pukekohe, as independent administrator of Ms Thorn’s estate.

1      Property (Relationships) Act 1976, s 2D.
2      Emery v Thorn [2018] NZHC 436.
3      Emery v Thorn HC Auckland CIV-2018-404-389, 10 October 2018 (Minute of Paul Davison J).

[7] A property, and the associated mortgage, is relevant to the dispute between the parties. Ms Thorn and Ms Emery jointly purchased a property in Papakura many years ago—in the 1980s. It was their family home. The property was mortgaged through BNZ. The parties’ positions are:

(a)Ms Emery says she provided the…

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 Emery v Thorn

Details

AGLC: Emery v Thorn [2018] NZHC 3164
Case: [2018] NZHC 3164
Decision Date: 4 December 2018

CaseChat Overview and Summary

The case of Emery v Thorn involved a dispute over the costs incurred in the resolution of a de facto relationship claim between the parties. The plaintiff, Ms. Elizabeth Emery, sought reimbursement of her costs from the estate of her former partner, Ms. Sheryl Thorn, who had died intestate. The defendants, the sons of Ms. Thorn, opposed the claim, arguing that the plaintiff should bear her own costs. The primary issue for the court to determine was whether the plaintiff's conduct in pursuing the claim was reasonable and whether the costs should be reimbursed from the estate.

The court found that the plaintiff's conduct was reasonable, and her costs should be reimbursed from the estate. The court considered the principles established in Re Paterson (deceased) to be applicable to the case, even though it did not involve a contested will. The court found that the dispute originated from the deceased's failure to leave a will, and the plaintiff's pursuit of letters of administration and a declaration of a de facto relationship was reasonable. The court also found that the disagreement about the mortgage debt did not rebut the plaintiff's entitlement to costs, as the issue could have been resolved separately.

The court ordered that the plaintiff's actual and reasonable costs should be reimbursed from the estate, but the plaintiff needed to provide more details for the court to assess whether all costs were reasonably incurred and reasonable in amount. The court encouraged the parties to reach an agreement on this point and set deadlines for the plaintiff and defendants to file memorandums itemising the costs and reasons for them. The matter would then be determined on the papers.

Orders