Hopkins v Banks - [2021] NZHC 1367

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2018-418-000003

[2021] NZHC 1367

IN THE MATTER of the estate of Joyce Eileen Banks

BETWEEN

NOELINE HOPKINS AND LORRAINE BANKS FOSTER

Applicants

AND

DOUGLAS BANKS

Respondent

Hearing: On the papers

Appearances:

G E Slevin for Applicants Respondent in person

A G Whitcombe, Counsel assisting the Court

Judgment:

10 June 2021

JUDGMENT OF DUNNINGHAM J

RE: Costs Decision

This judgment was delivered by me on 10 June 2021 at 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1] Noeline Hopkins and Lorraine Banks Foster (the applicants), as executors of their mother’s estate, apply for their actual and reasonable costs of $45,614.35, to be paid from the estate.

HOPKINS v BANKS [2021] NZHC 1367 [10 June 2021]

[2] The applicants say they do not seek costs against the respondent but request an order that the share of the estate that would have passed to him, but for his bankruptcy, bear a greater share of their costs. The applicants claim that the amount to be paid from his share of the estate is at least the equivalent of 2B costs of $22,741.50 from Mr Banks’ share of the estate plus disbursements of $1,135.33, or reflect increased or indemnity costs to be paid from the estate generally.

[3] Mr Banks (the respondent) and third executor of the estate, seeks costs lie where they fall.

Background

[4] The applicants and the respondent are siblings. Unfortunately, the relationship between the parties broke down after the death of their mother and as executors they could not agree on the appropriate administration of her estate. This was complicated by the fact Mr Banks was an undischarged bankrupt so his interest in the estate passed to the Official Assignee. The applicants applied under s 19 Administration Act 1969 to remove Mr Banks as executor via an order nisi calling upon the executor (the respondent) to show cause why probate should not be granted to the applicants alone.

[5] Instead of granting the order, Davidson J felt there was nothing insurmountable stopping the executors working together to gain probate.1 He suggested a Court imposed framework (the framework) involving a Court appointed solicitor (Mr Whitcombe) to act for all the parties to facilitate the granting of probate. The estate monies were ordered to be paid to the solicitor and no payments were to be made from that account unless the parties agreed or the Court directed. The solicitor was to contact the Court if further direction about administration was required. All parties agreed to this solution.

[6] There were a multitude of issues raised subsequently, generally by Mr Banks, but they were successfully worked through, with the help of Mr Whitcombe and various teleconferences convened by the Court. The major issues involved concerns over transparency and accountability between the parties, whether the freehold of the

1 Re Banks HC Christchurch CIV-2018-418-3, 17 July 2018.

estate’s major asset…

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.

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Details

Case: [2021] NZHC 1367
Decision Date: 10 June 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the applicants, Noeline Hopkins and Lorraine Banks Foster, as executors of their mother's estate, sought to have the respondent, Douglas Banks, removed as an executor due to his undischarged bankruptcy. The applicants claimed that Mr Banks' conduct caused delays and complications in the administration of the estate. The applicants requested their costs be paid from the estate, with a significant portion borne by Mr Banks' share.

The court had to decide on the appropriate allocation of costs, considering the applicants' success in the proceedings, the nature of Mr Banks' conduct, and the family context of the dispute. The court had to balance the applicants' success with Mr Banks' lack of understanding and cooperation, which led to delays, and the family context which made the court hesitant to aggravate tensions by making increased costs awards.

The court found the applicants to be, in substance, the successful party in the proceedings. The court awarded scale costs of $22,741.50 plus disbursements of $1,135.33, to be paid from Mr Banks' share of the estate. The court considered this outcome appropriate, reflecting the applicants' success, Mr Banks' lack of understanding and cooperation, and the family context of the litigation. The court rejected the Official Assignee's argument that Mr Banks' share of the estate should not be liable for his conduct as an executor.

The applicants were awarded costs in the sum of $22,741.50 plus disbursements of $1,135.33. These costs were to be paid from Mr Banks' share of the estate.

Orders