Estate of Carson

[2018] NZHC 1272

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2016-442-78

[2018] NZHC 1272

IN THE MATTER OF

The Trustee Act 1956, section 53 of the Administration Act 1969 and the Family Protection Act 1955

AND

IN THE MATTER OF

An originating application by ROBERT ALAN LANE and ANISSAS JEAN BAIN
in their capacity as trustees and executors of the estate of the late DAVID WAYDE CARSON

Trustees

Hearing:

On the papers

Counsel:

J V Ormsby for the Applicant

G F Kelly and K H Lawrence for the Trustees of the Carson estate P F Whiteside QC to assist the Court

R J Buchanan for M Sutherland N Laing for Mr Kremmer

Judgment:

31 May 2018

JUDGMENT OF CULL J

[Costs decision]

[1]        Following the release of my judgment dated 14 December 2017, a joint memorandum of counsel, for the step-son and niece of the deceased, has been filed seeking an order for costs.

[2]        Counsel correctly refer to my minute of 13 November 2017, where I indicated that costs would be dealt with at the hearing.

ESTATE OF DW CARSON [2018] NZHC 1272 [31 May 2018]

[3]        Following the hearing and as a result of developments since the hearing, I issued my decision on 14 December 2017, omitting costs orders in respect of the step- son and niece of the deceased, Mr Kreemer and Ms Sutherland.

[4]        Counsel have drawn my attention to the advice given to each of Mr Kremmer and Ms Sutherland to seek independent legal advice, as they were each beneficiaries under the deceased’s will. Mr Kremmer and Ms Sutherland decided to abide the Court’s decision and did not take an active part in the hearing. Nevertheless, they followed the advice given to them by the solicitors acting for the deceased’s estate and their independent solicitors undertook the preparation to provide each of them with ongoing advice and representation.

[5]        The costs of the beneficiary parties have been discussed with counsel for the estate and for the trust, who respectively take no opposition to an order being made for costs to be paid by the estate of the late Mr Carson in accordance with the scheduled annexed to counsels’ memorandum.

[6]        Accordingly, I make an order that the costs of Mr Kremmer and Ms Sutherland, as beneficiary parties to this litigation, be paid by the estate of the late Mr Carson, in accordance with schedule annexed to the joint memorandum of counsel, under s 71 of the Trustee Act 1956.

Cull J

Solicitors:

Pitt & Moore, Nelson

Greg Kelly Law Limited, Wellington Buchanan Gray Lawyers, Wellington Duncan Cotterill, Nelson