Kellerman v Kellerman-Thornton - [2020] NZHC 2804

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-250

[2020] NZHC 2804

UNDER Sections 21 and 44 of the Administration Act 1969

IN THE MATTER

of an application to remove an executor from office and ancillary orders

BETWEEN

BRENDAN EUGENE KELLERMAN

Applicant

AND

MARGARET YVONNE KELLERMAN- THORNTON

Respondent

Hearing: On the papers

Appearances:

J J Pietras and B Sheehan for the Applicant T R Mounsey for the Respondent

Judgment:

27 October 2020

JUDGMENT OF COOKE J

(Costs)

[1] By judgment dated 14 September 2020 I largely upheld the applicant’s claims in this proceeding.1 In particular I accepted that the expenses that the respondent had charged to the estate as executor were unreasonable and that she should be removed. I did not order that she provide an account, however, as the information she provided shortly before the hearing meant that that order was redundant.

[2] By memorandum dated 11 September 2020 the applicant now seeks costs. Counsel for Alexander Kellerman has also sought costs by memorandum dated

1 Kellerman v Kellerman-Thornton [2020] NZHC 2297.

KELLERMAN v KELLERMAN-THORNTON [2020] NZHC 2804 [27 October 2020]

14 September 2020. A memorandum in opposition dated 25 September 2020 has been provided by the respondent.

Assessment by Mr Kelly

[3] I first address Mr Mounsey’s submission that this decision should await Mr Kelly’s assessment in relation to expenses that may be allowed for the respondent, or that leave be granted to file further submissions once that assessment has been completed.

[4] I do not think that necessary or appropriate. I have determined that the respondent’s expenditure was not reasonably incurred, and ought to be disallowed. The issue being considered by Mr Kelly is whether some claim for expenditure should nevertheless be permitted. That has no impact on the costs decision that the Court might make as the costs decision turns on the judgment that has already been issued in the proceeding.

Costs on a 2B basis

[5] The applicant seeks costs on a 2B basis as he is the successful party. The respondent contends that the applicant was not entirely successful in the proceedings, however.

[6] Success on more limited terms is still success.2 Success should also be addressed on a realistic basis. I have little hesitation in concluding that the applicant succeeded in these proceedings. Whilst Mr Kelly has been asked to consider what the level of the respondent’s costs that should be permitted, the applicant established that the respondent charged unreasonable costs to the estate, and that these costs should be disallowed. He also established that the respondent should be removed as executor. Whilst the persons directed to be the replacement executors by the Court are different from the person sought, that did not mean that the proceedings were not successful.

[7] The fact that an account was not directed was a consequence of information that was disclosed late in the proceedings in circumstances where the Court held that

2 Weaver v Auckland…

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 Kellerman v Kellerman-Thornton

Details

AGLC: Kellerman v Kellerman-Thornton [2020] NZHC 2804
Case: [2020] NZHC 2804
Decision Date: 27 October 2020

CaseChat Overview and Summary

The case of Kellerman v Kellerman-Thornton involved an application by Brendan Eugene Kellerman to remove Margaret Yvonne Kellerman-Thornton as an executor of a deceased estate. The High Court of New Zealand was tasked with determining the appropriateness of the costs incurred by the respondent as executor and whether she should be removed from her role. The court also had to decide on the costs of the application itself, whether an uplift on the costs awarded should be granted, and whether the respondent's costs should be met from the estate.

The primary legal issue was whether the respondent's expenses charged to the estate were reasonable. The court had to assess if these expenses were incurred appropriately and if the respondent's actions warranted her removal as executor. Additionally, the court needed to determine the basis on which costs should be awarded, whether an uplift in costs should be applied due to the refusal of settlement offers, and if the respondent's legal costs should be covered by the estate.

The court ruled that the respondent's expenses were unreasonable and that she should be removed from her position as executor. The judge found that the applicant had succeeded in the proceedings as he established the unreasonableness of the costs and the necessity of removing the respondent. The court awarded costs to the applicant on a 2B basis, acknowledging that the applicant was the successful party. However, the judge did not find the respondent's refusal to settle on a Calderbank basis to be obdurate enough to justify an uplift in costs. The court also declined to allow the respondent's legal costs to be met from the estate, stating that it would be unreasonable given the respondent's actions and the necessity of the proceedings.

Orders