Hazelwood v Petrie, Jephcoate and Raynes as Executors and Trustees of the Estate of Petrie HC Auckland CIV 2009-404-2244
[2010] NZHC 1386
•10 August 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-2244
UNDER the Trustee Act 1956
IN THE MATTER OF the Estate of JUDITH WINIFRED PETRIE BETWEEN LYNDA MARY HAZELWOOD
Plaintiff
ANDROBERT PATRICK CHARLES A'COURT PETRIE, PHILIP THEODORE JEPHCOATE AND MARK NEVILLE RAYNES AS EXECUTORS AND TRUSTEES OF THE ESTATE OF JUDITH WINIFRED PETRIE
Defendants
Hearing: 4 August 2010
Counsel: Prajna Moodley for Plaintiff
Peter H Thorp for Defendants
Judgment: 10 August 2010 at 2:00pm
JUDGMENT OF HUGH WILLIAMS J.
This judgment was delivered by The Hon. Justice Hugh Williams on
10 August 2010 at 2:00pm
pursuant to Rule 11.5 of the High Court Rules
……………………………………………..
Registrar/Deputy Registrar
LYNDA MARY HAZELWOOD V ROBERT PATRICK CHARLES A'COURT PETRIE, PHILIP THEODORE JEPHCOATE AND MARK NEVILLE RAYNES AS EXECUTORS AND TRUSTEES OF THE ESTATE OF JUDITH WINIFRED PETRIE HC AK CIV-2009-404-2244 10 August 2010
[1] When this proceeding was commenced on 20 April 2009 the plaintiff sought summary judgment by way of an order that the defendants be removed as executors and trustees of the Estate of Judith Winifred Petrie and be replaced by the Guardian Trust.
[2] Even if the Court had power to grant summary judgment on such a claim under the Trustee Act 1956, the relief sought must always have been seen as a rather optimistic resort to the summary judgment procedure.
[3] The plaintiff, Ms Hazelwood, is an adult daughter of Judith Winifred Petrie who died on 3 November 2006, appointing the defendants executors and trustees of her will. The will provided for certain specific bequests and then required the executors to provide a property to be administered by the children of Mrs Petrie’s late daughter, Alison May Ellison of whom Mrs Hazelwood is the legal guardian. The residue was to be divided equally between Mrs Hazelwood, Mr Robert Petrie and jointly between the Ellison children. The testamentary requirement for the executors to provide a property to be administered by Mrs Ellison’s children apparently occurred as a result of proceedings under the Family Protection At 1955 by Ms Hazelwood and an order to that effect.
[4] In Ms Hazelwood’s affidavit in support of the summary judgment application she particularised what she said were defaults on the part of the defendants in administering the will (as amended) in accordance with its terms.
[5] On 2 September 2009 Ms Hazelwood filed an amended statement of claim raising issues concerning the interpretation of Mrs Petrie’s will by way of a first cause of action and added causes of action seeking a review of the defendants’ decision to purchase a property in Auckland for Ms Ellison’s children and repeating her application for relief by way of removal of the defendant as trustees.
[6] The trustees opposed both the application for summary judgment and the proceedings generally.
[7] The proceedings were said to have been settled as early as 11 June 2009 with the settlement then requiring to be documented, but settlement did not occur at that stage and doubts were raised as early as 22 September 2009 whether the Court had jurisdiction to deal with the matter by way of summary judgment and, if it did, whether it was a proceeding appropriately brought pursuant to that procedure.
[8] By 18 November 2009 the plaintiff had decided to withdraw her application for summary judgment and amend her statement of claim further. She accepted she was responsible for the defendants’ costs on the abandoned summary judgment application and on 25 February 2010 was ordered to pay costs of that application forthwith. They have since been paid.
[9] By that date there was the suggestion that the matters in issue in the proceeding – or, at least, in the first cause of action in the amended statement of claim – would be referred to counsel experienced in the issues of law raised by the claim for a binding ruling. That means of proceeding with the matter was agreed by about 3 May 2010 and the matter referred to Mr Grant.
[10] Mr Grant’s opinion was received by 6 July 2010 and when the matter came back before the Court for mention on 4 August 2010 the plaintiff sought and was granted leave to discontinue the entire proceeding.
[11] What remains outstanding is the defendants’ application for a further order for costs. The plaintiff took the position that no further order as to costs should be made but the defendants sought costs on a 2B basis at $6560 plus Mr Grant’s fee of
$3031.88 over and above the costs allowed on the summary judgment application. As an alternative, the defendants sought increased costs of $15,000 (against total fees paid by them exceeding $40,000) plus Mr Grant’s costs.
[12] In a further memorandum failed by Ms Hazelwood, she advised that she was agreeable to reimbursing the defendants – who had paid Mr Grant’s fee – for half the fee incurred.
[13] Correspondence attached to counsel’s memoranda show that attempts had been made to settle the issue of costs but these proved unsuccessful.
[14] There is little point in rehearsing the detail of counsel’s correspondence, reiterating, as it does, the parties’ respective views.
[15] Presumptively, she having obtained leave to discontinue the proceedings, it is appropriate that the plaintiff meet the defendants’ costs of the proceeding. It is also appropriate the plaintiff meet half Mr Grant’s fees.
[16] As already mentioned, it may have been optimistic for the plaintiff to invoke the summary judgment procedure from the outset but, that having been withdrawn and she having paid the appropriate costs in that regard, that passes from contention.
[17] Beyond that, there seems little on the papers to suggest the disputes between the parties go much beyond the disputes commonly found in proceedings of this nature and the manner of their expression. In those circumstances, it is appropriate the plaintiff pay the defendants’ costs on a 2B basis together with their disbursements as fixed by the Registrar.
[18] It remains to add that Mr Thorp submitted that costs should be allowed having regard to the decision in In re Buckton.[1] It is clear from a perusal of that judgment that the decision is largely one confined to its specific facts and it is sufficient to deal with it and the proceeding generally to say, as already indicated, that the matters in issue between the parties to this proceeding do not differ greatly from the types of issues customarily raised in disputes of this nature.
[1] In re Buckton: Buckton v Buckton [1907] 2 Ch 406.
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HUGH WILLIAMS J.
Solicitors:
Broofields (P Moodley), P O Box 76 004, Manukau 2241, for plaintiff
Peter J Cook, 25 Koraha Street, Remuera, Auckland 1050, for defendants
Counsel:
Peter H Thorp, P O Box 1987 Auckland 1140
Case Officer:
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