UNDER the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of the estate of MARTIN LEONARD HARVEY

BETWEEN

BRETT LEONARD HARVEY

Plaintiff

AND

PAUL MARTIN HARVEY and CLARK

ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

…/cont

Hearing: On the papers

Counsel:

DRI Gay for Brett Harvey

SWM Piggin for Delwyn Sinclair P J Stevenson for Margaret Harvey

K A Badcock and LAL Badcock for Bryce Harvey A McMillan for Paul Harvey

S C Dench for the Executors of the Estate of Martin Harvey

Judgment:

1 December 2021

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me
on 1 December 2021 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HARVEY v HARVEY [2021] NZHC 3264 [1 December 2021]

CIV-2019-419-21

UNDER the Family Protection Act 1955

IN THEMATTER OF the estate of MARTIN LEONARD HARVEY

BETWEEN BRYCE CHARLES HARVEY
Plaintiff

AND PAUL MARTIN HARVEY and CLARK
ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

CIV-2019-419-68

IN THEMATTER OF the estate of MARTIN LEONARD HARVEY

BETWEEN DELWYN MARGARET SINCLAIR
First Plaintiff

ANDDELWYN MARGARET SINCLAIR and MARGARET CHRISTINE HARVEY as
trustees of the Maraetai Trust Second Plaintiffs

AND PAUL MARTIN HARVEY and CLARK
ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

CIV-2019-419-82

IN THEMATTER OF the estate of MARTIN LEONARD HARVEY

BETWEEN PAUL MARTIN HARVEY
Plaintiff (DISCONTINUED)

AND PAUL MARTIN HARVEY and CLARK
ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

…/cont

CIV-2020-419-158

UNDERthe Property (Relationships) Act 1976 and the Family Protection Act 1955

IN THE MATTER of the estate of MARTIN LEONARD HARVEY

BETWEEN MARGARET CHRISTINE HARVEY
Applicant
AND PAUL MARTIN HARVEY and CLARK
ROWLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Respondents

Solicitors:Allen Needham & Co Ltd, Morrinsville Le Pine & Co, Taupo
Badcock Law, Rotorua
Carson Fox Bradley, Auckland B Knowles, Auckland

Counsel:DRI Gay, Auckland SWM Piggin, Auckland P J Stevenson, Auckland A MacMillan, Albany

[1] This judgment decides applications for costs by siblings Brett Harvey, Delwyn Sinclair and Paul Harvey and their mother, Margaret Harvey, against Bryce Harvey, their brother and son respectively.1

[2] The substantive proceedings were in relation to the Will of Mrs Harvey’s late husband, Martin Harvey, who died on 6 April 2016. Mr Harvey was survived by his wife, Mrs Harvey, and his five adult children: Paul, Brett, Clark, Delwyn and Bryce. The background to the claims is set out in my judgment of 14 September 2021.2 I reproduce that background below:

[4] Brett, Delwyn, Bryce and Mrs Harvey are all plaintiffs in these proceedings. Brett’s case and Delwyn’s case are centred on debts which are presently classified as loans in the assets of Mr Harvey’s estate. Brett says that at the time his debt arose, there was an agreement between him and…

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 Harvey v Harvey

Details

AGLC: Harvey v Harvey [2021] NZHC 3264
Case: [2021] NZHC 3264
Decision Date: 1 December 2021

CaseChat Overview and Summary

The case of Harvey v Harvey involved multiple family members litigating over the estate of Martin Harvey, who passed away in 2016. The High Court of New Zealand considered claims and counterclaims related to debts owed to the estate, property interests, and moral duties owed under the Family Protection Act 1955. The court awarded costs against Bryce Harvey to Brett, Delwyn, and Margaret Harvey, as well as the estate, for their successful claims. The court found that Bryce's conduct throughout the proceedings, including making meritless arguments and unreasonably refusing settlement offers, contributed to the time and expense of the proceedings. As a result, the court awarded increased costs to Brett, Delwyn, and Mrs Harvey, and indemnity costs to the estate. The court did not award indemnity costs to Paul Harvey, finding that Bryce's conduct, while unreasonable, did not meet the threshold for such an award. The final costs awards totalled $119,975.09 for Brett, $142,270.11 for Delwyn, $115,530.75 for Mrs Harvey, $54,167.70 for Paul, and $165,712.80 for the estate, all against Bryce.

Orders