Garriock v Marshall - [2023] NZHC 2614

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-618602

[2023] NZHC 2614

IN THE MATTER OF administration of the Estate of Donald Edward Garriock

BETWEEN

BRETT DANIEL GARRIOCK

Applicant

AND

DEBBIE VERONICA MARSHALL

Respondent

Hearing: On the papers

Counsel

C R D Williams and R J Williams for Applicant/Executor M Kirkland and C Smith for Respondent

Judgment:

21 September 2023

JUDGMENT OF CHURCHMAN J (COSTS)

[1] Both parties to these proceedings seek costs. Counsel for the Estate asks the Court to order Ms Marshall to pay costs on a 2B basis totalling $7,170. Counsel submits Ms Marshall’s claim was unsuccessful because she withdrew a caveat against probate.

[2] Counsel for Ms Marshall asks the Court to order the Estate to pay costs totalling $5,497. Counsel submits Ms Marshall’s claim was successful because she obtained disclosure of medical information.

Introduction

[3]There are three people involved in this matter.

GARRIOCK v MARSHALL [2023] NZHC 2614 [21 September 2023]

(a)Donald Edward Garriock (the deceased) was a storeman from Prebbleton, Canterbury. He died on 10 November 2022. His final will, dated 9 September 2022, appointed his son as the executor and leaves the residue of his estate to his son.1

(b)Brett Daniel Garriock (Mr Garriock) is the deceased’s son.

(c)Debbie Veronica Marshall (Ms Marshall) is the deceased’s former de facto partner.

[4] On 2 December 2022, Ms Marshall lodged a caveat against the administration of the estate of the deceased (the Estate). On 15 August 2023, counsel for the respondent advised the caveat would be withdrawn following consideration of the medical records. In my minute dated 15 August 2023, I made the consent order and directed that I would deal with costs on the papers.2

Submissions

For Mr Garriock

[5] Mr Williams, for Mr Garriock, submits Ms Marshall should be ordered to pay costs to the Estate on a 2B scale basis.

[6] Counsel submits Ms Marshall had no valid grounds to support the lodging of her caveat. A Judge of the Family Court explained to her that her relationship with the deceased was over, and she needed to accept that, on 26 July 2022.3 The deceased preparing a new will and enduring powers of attorney after this relationship separation was not unusual. In her affidavit filed in this proceeding dated 10 May 2023, Ms Marshall continued denying the relationship separation and misrepresented the situation between the parties as involving a continuing relationship. Following their separation, Ms Marshall was not entitled to the deceased’s medical notes and details

1      Garriock v Marshall HC Wellington CIV-2022-485-618602, 15 May 2023 (Minute of Eaton J).
2      Garriock v Marshall HC Wellington CIV-2022-485-618602, 15 August 2023 (Minute of Churchman J) at [5] and [9].
3      Marshall v Garriock FC Christchurch FAM-2022-009-000612, 26 July 2022 (Minute of Judge Shearer) at [12].

of the Estate position, except as relevant to a relationship property claim, which were provided informally.

[7] The Estate has incurred the actual legal costs of $3,845 plus…

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 Garriock v Marshall

Details

AGLC: Garriock v Marshall [2023] NZHC 2614
Case: [2023] NZHC 2614
Decision Date: 21 September 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Garriock v Marshall involved a dispute regarding the administration of the estate of Donald Edward Garriock. The deceased's son, Brett Daniel Garriock, the executor of the estate, and the deceased's former de facto partner, Debbie Veronica Marshall, were the parties involved. Ms Marshall had lodged a caveat against the estate's administration, which she later withdrew. The primary legal issue before the court was the allocation of costs between the parties. Specifically, the court had to determine whether Ms Marshall should pay costs to the estate or if the estate should pay costs to Ms Marshall.

The court considered the arguments from both sides. Counsel for Mr Garriock argued that Ms Marshall should pay costs to the estate on a 2B basis, as her caveat was lodged without a valid basis and was withdrawn only after the estate had incurred significant costs. Counsel for Ms Marshall argued that she should be awarded costs from the estate because she obtained the deceased's medical records, which allowed her to make an informed decision about the deceased's testamentary capacity. The court examined the relevant law, particularly the High Court Rules 2016, which provide that a party who fails in a proceeding should pay costs to the successful party.

The court concluded that Ms Marshall should bear the costs of the proceedings. The judge found that Ms Marshall's caveat was lodged without a sound basis and was withdrawn only after the estate had incurred significant costs. Although Ms Marshall obtained the medical records, the court viewed the proceedings as essentially failing because she withdrew the caveat. The judge found that Ms Marshall's claim could not be considered "successful" under the rules. The court ordered Ms Marshall to pay costs to the estate on a 2B basis, totaling $7,170, and dismissed Ms Marshall's application for costs against the estate.

Orders