Harsant v Menzies - [2014] NZHC 563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-000007 [2014] NZHC 563

UNDER the Administration Act 1969

IN THE MATTER

of the estate of the late FREDERICK GEORGE HARSANT deceased

BETWEEN

PAMELA CONSTANCE HARSANT Applicant

AND

GAIL MAVIS MENZIES, COLIN WALTER HARSANT and MALCOLM JOHN HARSANT

Respondents

Hearing: On the papers

Appearances:

B M Stewart and Mr Hall for the Applicant
M J Harsant on behalf of the Respondents

Judgment:

25 March 2014

JUDGMENT OF ELLIS J (Correction to para [69] of [2012] NZHC 3390)

This judgment was delivered by me on Tuesday 25 March 2014 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
B M Stewart, Simpson Western, North Shore, Auckland

Copy to: The Trustees of the F G Harsant estate.

HARSANT v MENZIES [2014] NZHC 563 [25 March 2014]

[1] On 13 December 2012 I gave judgment in favour of the applicant, removing the respondents as trustees of the estate of Frederick George Harsant and appointing the New Zealand Guardian Trust Company Ltd in their stead.1 I ordered that the applicant’s costs on a 2B basis be paid out of the estate.

[2] By a rather circuitous route (which I do not need, for present purposes, to set out) it has very recently come to my attention that in making that costs award I overlooked the fact that the applicant had, in fact, sought an award of indemnity costs on the basis of either r 14.6(4)(c) or (f). Those provisions state:

(4) The court may order a party to pay indemnity costs if—

…

(c) costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or

…

(f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.

[3] The applicant has asked me to correct my omission pursuant to the slip rule

(r 11.10).2

[4] As Harrison J noted in Waitara Leaseholders Association Inc v New Plymouth District Council3 r 14.6(4)(c) apparently has its origins in Re Buckton where Kekewich J said:4

In a large proportion of the summonses adjourned into Court for argument the applicants are trustees of a will or settlement who ask the Court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the beneficiaries, or else ask to have some question determined which has arisen in the administration of the trusts. In cases of this character I regard the costs of all parties as necessarily incurred for the

1      Harsant v Menzies [2012] NZHC 3390.
2      That this was the appropriate course was advised to the applicant by the Court of Appeal in a recent minute: Harsant v Menzies CA52/2013, 28 February 2014.
3     Waitara Leaseholders Association Inc v New Plymouth District Council HC New…

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 Harsant v Menzies

Details

AGLC: Harsant v Menzies [2014] NZHC 563
Case: [2014] NZHC 563
Decision Date: 25 March 2014

CaseChat Overview and Summary

The case of Harsant v Menzies involved the estate of the deceased Frederick George Harsant. Pamela Constance Harsant, an applicant, sought the removal of the respondents, Gail Mavis Menzies, Colin Walter Harsant, and Malcolm John Harsant, as trustees of the estate. The court was required to decide whether the applicant was entitled to indemnity costs based on the relevant provisions of the High Court Rules. Specifically, the court had to determine if the applicant qualified for indemnity costs under rule 14.6(4)(c) or (f). Rule 14.6(4)(c) allows for indemnity costs if costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party has acted reasonably in the proceeding. Rule 14.6(4)(f) allows for indemnity costs if there is some other reason justifying such an order.

The court held that the applicant was entitled to indemnity costs as she was a necessary party to the proceeding affecting the estate, and she acted reasonably in the proceeding. The court noted that the applicant's application for the removal of the respondents was in the best interests of the estate, and it was therefore appropriate that the estate bear the applicant's costs on an indemnity basis. The court corrected its earlier judgment, which had not awarded indemnity costs, and directed that the applicant's costs be payable on an indemnity basis out of the estate.

Orders