Lyall v Lyall - [2024] NZHC 1876

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-125

[2024] NZHC 1876

BETWEEN
EUAN DOUGLAS MACDAIRMID LYALL

Applicant

AND

MALCOLM BRUCE LYALL as an Executor and Trustee of the Estate of Heath Aston Lyall

Respondent

Hearing: On the papers

Appearances:

J I Taylor for Applicant N R Rout for Respondent

Judgment:

10 July 2024

JUDGMENT OF DUNNINGHAM J

Re: Costs

This judgment was delivered by me on 10 July 2024 at 2.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

LYALL v LYALL [2024] NZHC 1876 [10 July 2024]

Introduction

[1] This is an application for costs following this Court making orders, as sought by the applicant, directing the respondent to pay the applicant his share of his late mother’s estate.

[2]The applicant says costs should be awarded:

(a)against the respondent in his personal capacity; and

(b)on an increased or indemnity basis;

in light of the history of the applicant’s dealings with the respondent, and the fact the application was initially opposed.

Background

[3] The applicant’s mother, Heath Aston Lyall (the deceased), died on 31 January 2013. Probate of her will was granted on 17 June 2014 to Alistair Robert Lyall and Malcolm Bruce Lyall, two of the deceased’s four sons.

[4] The applicant was a beneficiary of the will, with the will specifying that he was to get:

(a)the deceased’s oak dresser; and

(b)25 out of 100 shares of the balance of the residue of the deceased’s estate.

[5] The respondent, the applicant’s brother, is now the sole executor and trustee of the deceased’s estate, as Alistair Lyall passed away on 1 April 2020.

[6] On 15 March 2013, the applicant lodged a caveat against the granting of probate for the will because of concerns, at the time, as to the validity of the will and the possibility it may have been created under improper influence or duress. However, he allowed the caveat to lapse when he learned his concerns were not well founded.

While he acknowledges the caveat may have caused delay in obtaining probate of the will, he says the caveat had no effect on the executors’ ability to distribute the estate after probate was granted on 17 June 2014.

[7] After probate was granted, the applicant did not receive his entitlements to the estate under the will. The respondent explains that shortly after his mother’s death Mr McNab, an associate of the applicant, began contacting the estate’s solicitor Mr Nicholas Rout, alleging that the applicant had assigned his interest in the deceased’s estate to Mr McNab and Mr Hay (who was copied into Mr McNab’s emails).

[8]On 1 October 2015 Mr Rout wrote to the applicant advising that:

(a)Mr McNab and Mr Hay had made a claim that they were entitled to the applicant’s share in the deceased’s estate;

(b)the applicant, Mr McNab and Mr Hay would need to provide written directions in relation to the distribution of the applicant’s share; and

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 Lyall v Lyall

Details

AGLC: Lyall v Lyall [2024] NZHC 1876
Case: [2024] NZHC 1876
Decision Date: 10 July 2024

CaseChat Overview and Summary

In Lyall v Lyall, the applicant, Euan Lyall, sought costs from his brother, Malcolm Lyall, as the executor and trustee of their late mother's estate. The crux of the dispute was the delay in distributing Euan's share of the estate, which had not been paid out nearly a decade after probate was granted. The applicant argued that the costs incurred in bringing the application should be borne by Malcolm, both because of his unreasonable opposition and because any costs awarded would ultimately be paid by Euan, as his share was the only remaining asset in the estate.

The legal issues before the court were whether Malcolm should be personally liable for the costs of the application and, if so, whether those costs should be awarded on a standard, increased, or indemnity basis. The court considered whether the executor's actions were reasonable and whether he had any justification for his conduct, which included a prolonged refusal to distribute Euan's share despite multiple warnings that costs would be sought from him personally.

The court found that Malcolm's refusal to distribute the estate was unreasonable and unjustified, particularly given the passage of time and the lack of any formal claim against the estate. The court also noted that Malcolm had opposed the application without a reasonable basis and had contributed unnecessarily to the proceedings by taking steps that lacked merit. Consequently, the court ordered that Malcolm should pay the applicant's costs on a 2B basis with a 50 per cent uplift, plus disbursements, in his personal capacity. This decision ensured that Malcolm bore the financial burden of his unreasonable actions, which had prolonged the delay in distributing Euan's rightful share of the estate.

Orders