Knight v Glass
[2022] NZHC 2764
•25 October 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-237
[2022] NZHC 2764
BETWEEN LISA JANE KNIGHT
Applicant
AND
WILLIAM DENVER GLASS AND LYNDEN THOMAS GLASS
First Respondents
WILLIAM DENVER GLASS
Second Respondent
Hearing: (Dealt with on the papers) Appearances:
A H Waalkens KC and A M Watkins for Applicant
S P Rennie and A G N Whalan for First Respondents
R Raymond KC and J M McGuigan for Second RespondentJudgment:
25 October 2022
JUDGMENT OF EATON J
[1] The applicant, Lisa, is the daughter of the late Sally Elizabeth Glass (Libby) from her first marriage. The second respondent, Denver, is Libby’s husband. Denver and his son, Lynden Glass, are executors and trustees of the deceased’s estate.
[2] By application dated 20 May 2021, the applicant sought orders for the removal and replacement of the first respondents as executors and trustees of Libby’s estate (the removal application).
[3] At the time the removal application was filed it appeared that an application for leave to bring reverse relationship property proceedings under s 88(1) of the
KNIGHT v GLASS [2022] NZHC 2764 [25 October 2022]
Property (Relationships) Act 1976 (the leave application) would not be made by the executors within the statutory 12-month timeframe.
[4] However, by joint memorandum dated 24 June 2021, the parties had reached agreement under which the leave application would be made by the executors, but progressed by the applicant as the party interested in the application. Accordingly, the applicant advised she no longer sought to pursue the removal application. The proceedings were then adjourned by consent, initially for a period of six months and then, again by consent, for a further period of six months. The stated purpose of the adjournments was to resolve further procedural matters, and then to enable the leave application to be determined.
Current position
[5] The applicant accepts that it is now appropriate for the removal application to be discontinued against the second respondent, provided the parties agreed there be no issue as to costs. The applicant seeks to have the leave application adjourned for a further period of six months to enable the leave application to be determined, for the parties to consider their positions and to take steps in relation to the substantive proceedings (in the event leave is granted). The applicant raises concern as to the executors level of c-operation should the parties move into a substantive proceeding. The applicant therefore seeks to have the removal application remain afoot until initial orders, including discovery orders, are made in the substantive proceeding.
[6] Mr Rennie and Ms Whalan, for the first respondents oppose the application to further adjourn. that would permit the removal application to remain on foot. The first respondents’ position is that the removal application was never necessary and refers to the concession now made by the applicant that it should be discontinued. Counsel for the first respondent points out that the executors have taken a constructive and co- operative approach to date and there is nothing to suggest that approach will not continue. He submits there is no basis for the applicant to have residual concerns as to co-operation.
[7] Mr Raymond KC and Ms McGuigan, on behalf of the second respondent, point to an email dated 17 August 2021 wherein the applicant accepted that, following a six month adjournment, discontinuance would be appropriate. Counsel submit that when previous adjournments were agreed the parties did not have a date for the leave application, however, a date (25 October 2022) has since been confirmed. The second respondent seeks a direction that the removal application be discontinued and seeks costs.
[8] Reference is made to r 15.23 of the High Court Rules which provides that a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance. Counsel submit there is no reason to depart from that rule. Reference is made to the second respondent’s notice of opposition dated 4 June 2021 and expressly pleading that Denver ought never have been included as party to the proceeding in his personal capacity. Denver seeks costs on a 2B basis in the amount of $4,541 in accordance with a schedule attached to Ms McGuigan’s memorandum.
[9] In a reply memorandum dated 3 October 2022 Mr Waalkens KC and Mr Watkins, for Lisa, insist that a further six month adjournment of the removal application as against the executors, is appropriate and necessary. Counsel acknowledge that by joint memorandum the applicant had agreed “it is no longer necessary for [her] application for removal of executors to be pursued”, but submits this was in the context of the parties having reached an agreement around how the leave application could be filed within time. This was achieved and the removal application filed, but it is submitted, prior to the filing of the removal application, the applicant had not been able to obtain confirmation from the executors that the leave application would be filed in time. The applicant has maintained throughout that she wished for the proceeding to remain afoot in case problems arose. It is submitted that a further and final six month adjournment would continue to preserve the position, in case any issues arise in the aftermath of the leave application being determined.
[10] In response to the second respondent’s costs application, counsel notes that Denver is the sole beneficiary of Libby’s estate and is also one of the two executors of the estate. Counsel submits that Denver was joined to the removal application because
it was clear he was interested in the proceeding in his personal capacity and that any arrangement the parties might have reached about how the leave application could be progressed would require his agreement in that capacity over and above agreement with the executors. It is submitted that if, alternatively, Denver had been served as an interested party, it is likely he would have instructed counsel to attend the mentions hearing and case management conferences relating to the removal application just as he did when attending in his capacity as a defendant. The applicant therefore submits it is not appropriate for costs to be awarded on discontinuance.
[11] If the Court takes the contrary view, the applicant submits that costs ought to be awarded in the sum of $1,434, being the costs of filing the notice of opposition.
Second respondent - discontinuance and costs
[12] There is no issue that a notice of discontinuance should now be filed in relation to the second respondent. The notice of discontinuance is to be filed before 1 November 2022.
[13] I acknowledge that Denver, if served with the proceedings as an interested party, would likely have engaged counsel to represent his interests in a similar capacity to that taken as a defendant. However, I see no basis to overcome the default position of r 15.23. Rule 4.23 provides that it is not necessary to join persons beneficially interested in a trust or an estate to a proceeding because the trustees, executors and administrators represent those persons. There was no need to join Denver as a party. In those circumstances, I award 2B costs in favour of Denver in the amount of $4,541.
First respondent - further adjournment
[14] The proceeding against the first respondents has been adjourned by consent for a period of over 12 months. The leave application was heard on 25 October 2022. Judgment was reserved. In my view the primary rationale for the lengthy adjournment of the removal application notwithstanding the agreed position that the application would ultimately be discontinued, was to ensure the leave application proceeded to a hearing. That has now happened. Absent the consent of the first respondents, I do not consider it appropriate to allow another lengthy adjournment simply to “preserve the
position in case any issues arise”. I direct the applicant file a notice of discontinuance against the first respondents by 1 November 2022.
...................................................
Eaton J
Solicitors:
Wynn Williams, Christchurch Rhodes & Co, Christchurch Ben Tothill, Christchurch
Copy to:
Harry Waalkens KC, Barrister, Christchurch Richard Raymond KC, Barrister, Christchurch Janna McGuigan, Barrister, Christchurch
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