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Fry v Fry

Fry v Fry

Case [2015] NZHC 2716 4 November 2015

Adverse Possession

Wills & Testamentary Promises

Costs

Executor's Costs

Succession Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001072 [2015] NZHC 2716

IN THE MATTER
of the estate of LAWRENCE WILLIAM

FRY

BETWEEN

JASON LAWRENCE FRY Appellant

AND

CAROL MIZPAH FRY Respondent

Hearing: 17 September 2015

Counsel:

N Penman-Chambers for Appellant
B Carter for Respondent
K Muir for Estate

Judgment:

4 November 2015

JUDGMENT OF ASHER J (Appeal on costs decision)

This judgment was delivered by me on Wednesday, 4 November 2015 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Hesketh Henry, Auckland.
Morgan Coakle Lawyers, Auckland. B Carter, Auckland.

FRY v FRY [2015] NZHC 2716 [4 November 2015]

[1] This is an appeal against a detailed cost decision made in the Family Court by Judge D A Burns on 23 February 2015.1 It does exactly what the cost provisions of the Family Court, District Court and High Court Rules are designed to prevent. It traverses a lengthy and expensive argument about costs, which is undoubtedly uneconomic for all parties. A day was spent on argument.

[2] The background to these proceedings is that the deceased in his last will left his entire estate to his second wife, the respondent. Mr Fry is one of the three children of the deceased. He considered that provision should have been made for him, and claimed the deceased had promised to bequeath him an interest in the family business. On 7 April 2010 Mr Fry issued proceedings in respect of his father’s estate under the Family Protection Act 1955 (the FPA) and the Law Reform (Testamentary Promises) Act 1949 (the TPA).

[3] The value of the estate at the date of the trial was $1.4 million. The trial proceeded on 11–13 February 2014. In a judgment of 15 April 2014 Judge Burns dismissed both causes of action.2 Costs were not determined on the Family Court proceedings at that point.

[4] Mr Fry appealed the FPA part of the decision. There was no appeal against the dismissal of the TPA claim. In a decision delivered on 17 September 2014, Moore J allowed the appellant’s appeal and awarded him $175,000 under the FPA together with costs and disbursements in the High Court on a 2B basis.3 Moore J made no order as to costs for the Family Court proceedings, and when the parties sought directions he determined that the issue should be remitted to the Family Court
to be determined by the trial Judge.

[5] Memoranda as to costs were subsequently filed by all parties in the Family

Court. Judge Burns delivered the decision that is the subject of this appeal on

23 February 2015. In that decision the Judge dismissed Mr Fry’s application for
costs and ordered that Mrs Fry in a personal capacity be awarded costs and disbursements on the TPA claim on a 2B basis. Each party was to bear their own

1      Fry v Fry [2015] NZFC 1461.
2      Fry v Fry [2014] NZFC 2650.
3      Fry v Fry [2014] NZHC 2256.

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 Fry v Fry

Details

AGLC: Fry v Fry [2015] NZHC 2716
Case: [2015] NZHC 2716
Decision Date: 4 November 2015

CaseChat Overview and Summary

The case of Fry v Fry involved an appeal against a detailed cost decision made in the Family Court by Judge D A Burns. The appeal concerned the estate of Lawrence William Fry, with his son, Jason Lawrence Fry, the appellant, and his second wife, Carol Mizpah Fry, the respondent. The appellant claimed that the deceased had promised to bequeath him an interest in the family business and brought proceedings under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. The trial in the Family Court concluded with the Judge dismissing both causes of action, but the appeal was successful in the High Court, awarding the appellant $175,000 under the Family Protection Act. The costs decision in the Family Court was the subject of the appeal, with the appellant contending that the costs should lie where they fell, while the respondent argued that the costs should be borne by the estate.

The legal issues the court had to decide included the appropriate approach to costs in Family Protection Act proceedings and the application of the principle that the party who "fails" with respect to a proceeding "should pay costs to the party who succeeds." The court had to determine whether the respondent should bear the costs of the appellant's successful appeal and whether the Calderbank offer should have any bearing on the costs decision.

In its reasoning, the court held that the respondent should bear the costs of the appellant's successful appeal since the appellant was entitled to costs for the Family Court hearing. The court rejected the notion that the success was achieved following an appeal as irrelevant, stating that the starting position was that the appellant was entitled to costs. The court also found that the Calderbank offer, which was significantly short of the judgment, should have been disregarded. The court determined that the costs should be reduced by two-thirds, taking into account the significant amount of time spent on the unsuccessful TPA claim. The executor's costs should come out of the estate, but the court invoked its overall discretion to achieve a just result, ordering the appellant to pay two-thirds of the estate's accountant's fee and a one-off sum of $3,000 to the respondent as executor of the estate.

The outcome of the appeal was that the costs orders made by Judge Burns on 23 February 2015 were set aside, and new orders were made. The appellant was entitled to one-third of the costs and disbursements on a 2B basis for the proceeding, payable by the respondent in her capacity as a beneficiary. The respondent in her capacity as an executor was entitled to costs and disbursements from the estate, but the appellant was to pay two-thirds of the estate's accountant's fee and a sum of $3,000 to the respondent as executor to recognize the unnecessary objection to the accountant's evidence.

Orders