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Hamilton v Kirwan

Hamilton v Kirwan

Case [2021] NZHC 19 25 January 2021

Proprietary Estoppel

Costs

Success on more limited terms

Settlement Offers

Family Law

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NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000322

[2021] NZHC 19

UNDER the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of the Estate of DESMOND WAYNE HETHERINGTON

AND

IN THE MATTER

of the COVE ROAD TRUST

BETWEEN

KEELEY FLEUR HAMILTON

Plaintiff

AND

DESMOND MICHAEL KIRWAN

First Defendant

CRAIG DESMOND HETHERINGTON

Second Defendant

Hearing: On the papers

Counsel:

L Kearns and J S Langston for the Plaintiff P Moodley for the First defendant

G C Jenkin for the Second Defendant

Judgment:

25 January 2021

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Monday, 25 January 2020 at 4:30 pm
pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

HAMILTON v KIRWAN [2021] NZHC 19 [25 January 2021]

[1] On 24 August 2020, I gave judgment allowing in part the plaintiff Ms Hamilton’s claim against the first defendant Mr Kirwan, the executor of the estate of her late father, Mr Desmond Hetherington. I dismissed her claim against her brother Mr Craig Hetherington, the second defendant, the trustee of the Cove Road Trust.1

[2] At the conclusion of my judgment, observing that costs ordinarily follow the event, I reserved leave to the parties to file memoranda in the event they were unable to agree as to costs. They have not been able to agree. Memoranda have been filed, and the issue of costs now arises for determination.

Background

[3] On 30 May 2016, Mr Desmond Hetherington executed a will directing that his residuary estate be divided equally between his three children. However, on the same day, he settled a 58.9450 hectare property at Mangawhai on the Cove Road Trust, of which he was then sole trustee. Mr Hetherington had purchased that property in his own name in 1984. Ms Hamilton had lived on the property since 1997, and since 2000 had, together with her partners, made improvements to the property. She did this on the basis of assurances from Mr Hetherington that he would leave Ms Hamilton a one- third share in the property on his death.

[4] Ms Hamilton’s two brothers, together with Mr Desmond Hetherington’s grandchildren, were beneficiaries of the Cove Road Trust. Ms Hamilton was not. In this respect, it was relevant that in Mr Desmond Hetherington’s earlier will dated nine months earlier, on 1 September 2015, he had directed that after his death, the property was to be transferred to Ms Hamilton and her two brothers as joint tenants, in accordance with the assurances referred to above.

[5] Mr Desmond Hetherington died on 1 January 2017. Before his death, he had resigned as sole trustee of the Cove Road Trust and appointed his son, Mr…

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 Hamilton v Kirwan

Details

AGLC: Hamilton v Kirwan [2021] NZHC 19
Case: [2021] NZHC 19
Decision Date: 25 January 2021

CaseChat Overview and Summary

In Hamilton v Kirwan, the plaintiff, Ms Hamilton, sought a one-third share of a property owned by her late father, Mr Hetherington, which he had settled on the Cove Road Trust prior to his death. The first defendant, Mr Kirwan, is the executor of Mr Hetherington's estate, and the second defendant, Mr Craig Hetherington, is the trustee of the Cove Road Trust. Ms Hamilton brought proceedings against both defendants, seeking relief on various grounds, including proprietary estoppel, constructive trust, undue influence, and under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. The court allowed Ms Hamilton's claim in proprietary estoppel against the estate and Mr Kirwan as executor but dismissed her other claims. The matter now before the court is the issue of costs.

Ms Hamilton sought costs on a 2B basis and disbursements, uplifted by 50 per cent, while the defendants argued for a reduction in the costs awarded to Ms Hamilton due to her unsuccessful claims. They also claimed their costs from 17 May 2019, the date of their Calderbank offer. The court found that Ms Hamilton was entitled to costs on a 2B basis for her successful proprietary estoppel claim, but there should be a reduction in the costs awarded due to the unsuccessful causes of action and the complexity they added to the proceeding. The court also found that the defendants were entitled to their costs from 17 May 2019 in respect of the unsuccessful causes of action. The court directed the parties to file memoranda if any dispute as to quantum arises.

The court awarded costs as follows: (a) the first and second defendants were to pay Ms Hamilton's costs in respect of her first through fifth causes of action on a 2B basis, plus disbursements as relate to those causes of action only, provided that she was to be entitled to costs on the basis of a two-day hearing only; (b) Ms Hamilton was to pay the first and second defendants' costs in respect of their success in respect of the sixth and seventh causes of action on a 2B basis, and their disbursements as relate to those causes of action only. The parties' respective costs were to be set off and the lesser of these sums deducted from the greater. If any dispute as to quantum arose, the parties were to file memoranda within 20 working days of the date of the judgment.

Orders