J W H Little and J K Grimmer for Appellant C E Wiseman for Respondent
Judgment:
13 June 2019 at 2.30 pm
JUDGMENT OF THE COURT
AThe order that Mr Jones is to pay the actual and reasonable costs incurred by Ms O’Keeffe in her application to remove him as trustee is set aside.
B Ms O’Keeffe is to be reimbursed from the trust for the actual and reasonable costs incurred by her in relation to her application to remove Mr Jones as trustee.
CMr Jones is to reimburse the trust for the costs incurred by Ms O’Keeffe in relation to all steps in the proceedings after, but not including, the amended application for interlocutory orders dated 6 July 2018, including the costs of the hearing. Those costs are to be calculated on an actual and reasonable solicitor/client basis and are to include disbursements.
DThe reasonableness of the above costs is to be assessed by a senior barrister in accordance with the direction of the Judge at [29] of the judgment under appeal.
EMr Jones is not entitled to be reimbursed from the trust for any costs associated with his opposition to the application to have him removed as trustee.
FCosts on the appeal are to lie where they fall. Neither party is to be reimbursed out of the estate for the costs associated with this appeal.
Angela O’Keeffe and Dail Jones were appointed executors and trustees of the estate of Daniel O’Keeffe. Issues arose between Ms O’Keeffe and Mr Jones as to the administration of the trust under the will. Ultimately Ms O’Keeffe applied to the High Court to have Mr Jones replaced as trustee.
During the course of the proceedings both Ms O’Keeffe and Mr Jones agreed to their replacement as trustees by the Public Trust. The only remaining issue was costs. After hearing from both parties Palmer J ordered Mr Jones to pay the costs Ms O’Keeffe had incurred on an indemnity basis with the reasonableness of the costs to be assessed by a senior barrister.[1]
Daniel O’Keeffe and his wife Mary (known as Molly) had seven children. Ms O’Keeffe is one of their daughters. Daniel died on 27 March 2009 aged 85. His estate consisted of a large property at Waitakere, cash of $130,000 and personal effects. He left a life interest in his estate to Molly on condition that she allow another daughter, Maria to live in a separate dwelling Maria built on the Waitakere property. He appointed Ms O’Keeffe and Mr Jones, his solicitor, as his executors and trustees. Upon Molly’s death Maria…
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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AGLC
Jones v O'Keeffe [2019] NZCA 222
Case
[2019] NZCA 222
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appeal in Jones v O'Keeffe was heard by Courtney, Venning and Lang JJ. The case involved a dispute between Angela O'Keeffe and Dail Jones, who were appointed as executors and trustees of Daniel O'Keeffe's estate. The central issue was the costs incurred by Ms O'Keeffe in her application to have Mr Jones removed as trustee, and whether Mr Jones should be personally liable for those costs. The Court of Appeal examined whether the High Court judge had erred in requiring Mr Jones to pay the costs on an indemnity basis.
The Court of Appeal found that the High Court judge had erred in considering Mr Jones' conduct prior to the proceedings and in awarding indemnity costs. The appeal process was limited to the issue of costs, and the judge should have focused on the conduct of the parties during the litigation rather than their pre-proceeding conduct. The Court of Appeal also noted that the provisions of the Trustee Act did not require a different approach to costs in this case. Ultimately, the Court of Appeal decided that Ms O'Keeffe should be reimbursed from the trust for her costs, and Mr Jones should reimburse the trust for the costs incurred after the amended application dated 6 July 2018. The reasonableness of these costs is to be assessed by a senior barrister. Mr Jones is not entitled to be reimbursed from the trust for any costs associated with his opposition to the application to have him removed as trustee. Costs on the appeal are to lie where they fall, and neither party is to be reimbursed out of the estate for the costs associated with this appeal.