Jurisich v Harris - [2016] NZHC 1278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-485-605889 [2016] NZHC 1278

IN THE ESTATE OF IHAIA GILLMAN-HARRIS

IN THE MATTER

of the Administration Act 1969

BETWEEN

JEANA JURISICH

Caveator

AND

DESMOND HARRIS

Respondent

Hearing: On the papers

Counsel:

A G Rowe for caveator
A W Johnson for respondent

Judgment:

14 June 2016

JUDGMENT OF KATZ [Costs]

This judgment was delivered by me on 14 June 2016 at 4:00pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Wells & Co, Auckland
Martelli McKegg, Auckland

Copy to: The Public Trust, Auckland

JURISICH v HARRIS [2016] NZHC 1278 [14 June 2016]

Introduction

[1] On 24 March 2016 I delivered a judgment (“Judgment”) in these proceedings in which I upheld Jeana Jurisich’s objection to the appointment of her brother, Desmond Harris, as the administrator of the Will of the parties’ late brother, Ihaia Gillman-Harris.1

[2] Mr Gillman-Harris died intestate. Following his death, Mr Harris applied for letters of administration. Ms Jurisich filed a caveat, objecting to the appointment of Mr Harris as administrator. As is the usual practice, an order nisi was made in respect of Mr Harris’ application. Ms Jurisich’s caveat application was set down for hearing, in order for her to “show cause” why the order nisi should not be made absolute.

[3] Following the show cause hearing I discharged the order nisi and appointed the Public Trust as temporary administrator of the deceased’s estate. I concluded that it was no longer appropriate for Mr Harris to continue in the role of administrator as he had shown, at best, poor judgment in relation to significant distributions he had made or (in some cases) attempted to make on the eve of the court hearing. He had also paid himself an “administrator fee” of $10,000 from the estate, without the approval of the court or his fellow beneficiaries. I concluded that Mr Harris had a limited understanding of aspects of his role and the legal obligations of an administrator. Further, he had failed to seek legal advice when such advice was clearly called for.

[4] Ms Jurisich now seeks costs of $21,821.00 from Mr Harris in respect of her successful caveat application. She also seeks an order that those costs be met from Mr Harris’ share of the deceased’s estate. Ms Jurisich claims 2B costs for the period up to 2 February 2016, when she made an offer to settle the proceedings. She seeks an indemnity costs award for the costs she incurred after 2 February 2016.

[5] Mr Harris submits that the issue of costs should be reserved until all administration issues are fully resolved. In the alternative, he submits that costs should be determined pursuant to the scale set out in the High Court Rules, that any award of costs against him should be met by the estate, and that his own costs should also be met by the estate.

[6] Against this background, the key issues I must determine are:

(a) Should costs issues be reserved until…

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 Jurisich v Harris

Details

AGLC: Jurisich v Harris [2016] NZHC 1278
Case: [2016] NZHC 1278
Decision Date: 14 June 2016

CaseChat Overview and Summary

The case of Jurisich v Harris involves a dispute over the administration of the estate of Ihaia Gillman-Harris, who died intestate. Jeana Jurisich objected to her brother, Desmond Harris, being appointed as the administrator of the estate, leading to a caveat application and subsequent court proceedings. The High Court of New Zealand, Auckland Registry, delivered a judgment on June 14, 2016, upholding Jeana's objection to Harris' appointment. In light of this, Jeana now seeks costs from Harris in the sum of $21,821.00. The court was required to determine several issues, including whether costs should be reserved until all administration issues were resolved, whether costs should be awarded from the estate or personally against the parties, and the quantum of costs to be awarded for the respective periods before and after Jeana's settlement offer of February 2, 2016.

The court found that costs should not be reserved until all administration issues were resolved, as the issue of Harris' suitability as administrator had effectively been determined. The court also determined that costs should not be met solely from the estate but rather, Harris should bear some of the financial consequences of his unsuccessful application due to his poor decision-making. In terms of the quantum of costs, the court awarded 2B scale costs for the period up to February 2, 2016, and a 25% uplift in 2B scale costs for the period following the settlement offer, resulting in a total costs award of $15,387 against Harris. Additionally, the estate was ordered to meet $6,434 of Jeana's costs.

Orders