Nawisielski v Nawisielski
[2014] NZHC 2039
•27 August 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2014-488-000054 [2014] NZHC 2039
UNDER Section 145A of the Land Transfer Act
1952
IN THE MATTER OF
the estate of RICHARD CLEMENT NAWISIELSKI
BETWEEN
ANTHONY PAUL NAWISIELSKI Applicant
AND
MARIANNE DENISE NAWISIELSKA Respondent
Hearing: 7 July 2014 Appearances:
N W Woods for Applicant
J G A Day for RespondentJudgment:
27 August 2014
COSTS JUDGMENT OF ASSOCIATE JUDGE BELL
This judgment was delivered by me on 27 August 2014 at 4:30pm
Pursuant to Rule 11.5 of the High Court Rules
………………………………………….
Registrar/Deputy Registrar
Solicitors:
Rice Craig, Papakura, for Plaintiff
Law North, Kerikeri, for Defendant
A P NAWISIELSKI v M D NAWISIELSKA [2014] NZHC 2039 [27 August 2014]
[1] This is a decision on costs on an application under s 145A of the Land Transfer Act 1952 to sustain notice of claim 9648686.1, lodged against five titles of which the respondent is the registered proprietor. The application was to be heard on
7 July 2014. On 4 July 2014 the applicant filed a discontinuance. In a telephone conference on 7 July I ordered the notice of claim to be removed, but under s 148 of the Land Transfer Act I allowed the new executor of the estate of Richard Clement Nawisielski to lodge fresh notices of claim against the titles. I reserved costs.
[2] The respondent seeks costs and increased or indemnity costs. The applicant opposes but does not seek an order for costs himself.
[3] Rule 15.23 of the High Court Rules applies to costs on a discontinuance:
Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of or incidental to the proceeding up to and including the discontinuance.
[4] Associate Judge Abbott outlined the standard approach under r 15.23 in FM Custodians Ltd v Pati:1
[10] The presumption may be displaced if the Court finds there are circumstances which make it just and equitable that it should not apply.2
[11] The Court is not limited in the factors that can be taken into account when considering whether the presumption is displaced, but the following are matters which are taken into consideration:
(a) As the general rule the Court will not consider the merits of the respective cases (unless they are so obvious that they should influence the costs issue).3
(b) The Court will consider the reasonableness of the stance of both parties in the proceeding (whether it was reasonable for the plaintiff to bring and continue the proceeding, and for the defendant to oppose and continue to oppose it, up to the point of discontinuance).4
1 FM Custodians Ltd v Pati [2012] NZHC 1902 at [10]-[12].
2 North Shore City Council v Local Government Commission (1995) 9 PRNZ 182 (HC) at 188; Kroma Colour Prints Ltd v Tridonicatoato NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973 at [12].
3 North Shore City Council, above n 2, at 186; Kroma Colour Prints Ltd op cit.
4 North Shore City Council, above n 2, at 187; Kroma Colour Prints Ltd op cit.
(c) Conduct prior to the commencement of the proceeding may be relevant (for example, if any conduct by a defendant has precipitated the litigation), as may be the reason for discontinuing (for example, where a change of circumstances has made the proceedings unnecessary).5
[12] The Court’s general discretion in relation to costs6 can also override the general principles in relation to discontinuance.7
[5] The reason for generally not considering the merits is that the court may not be able to assess them, short of a full hearing. The contest in this case was on a single issue: whether the applicant had standing to lodge a notice of claim under s 42 of the Property (Relationships) Act 1976. Both sides filed full legal argument for the hearing. In my minute following the conference on 7 July 2014 I set out some provisional views as to the merits of the case. Both sides responded. There has been an exchange of argument as full as in an opposed hearing. In these circumstances, I have come to a view as to the merits: the applicant was entitled to lodge a s 42 notice of claim because there were special circumstances which would entitle him to bring a derivative claim against the respondent on behalf of the estate of his late father. That entitlement to bring a derivative claim fell away once the respondent was replaced as executor of the father’s estate by an independent executor. In those circumstances it was appropriate for the applicant to leave the matter in the hands of the new executor. Because of that view, I find that the presumption under r 15.23 has been displaced.
[6] This is only one of the proceedings involving the estate of the late Richard Clement Nawisielski, who died on 29 October 2012. The applicant is one of the sons of his first marriage. The respondent was his second wife and is now his widow
- they married on 29 June 1985. There were no children of the second marriage. The late Mr Nawisielski disinherited the two sons of his first marriage and arranged his affairs to make it as difficult as possible for them to make any claim against his
estate. He and the respondent had significant property holdings around Kerikeri and
5 Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, quoted in North Shore City Council, above n 1, at 187. See also McGechan on Procedure (looseleaf ed, Brookers) at [HR15.23.01], cited in Vector Gas Ltd v Todd Petroleum Mining Co Ltd HC Wellington CIV-2004-485-1753, 7 December 2010.
6 High Court Rule 14.1.
7 Oggi Advertising Ltd v McKenzie (1998) 12 PRNZ 535 (HC) at 536; Kroma Colour Prints Ltd
op cit.
also a property in Orewa, Auckland. The respondent’s parents also have an interest in the Orewa property. Mr Nawisielski and the respondent owned the properties as joint tenants, so that the respondent has taken them on survivorship upon his death. Mr Nawisielski’s remaining assets are relatively insignificant. In his will he appointed the respondent his executor so long as she survived him by two weeks. He left everything to her. The respondent took the real estate by transmission during
2013. Probate of the will was granted on 10 January 2014. The respondent did not renounce her executorship. The notice of claim was lodged on 19 February 2014.
[7] From the date of her husband’s death until she was replaced as executor, the respondent did not accept that the assets of the estate included the right to make a relationship property claim against her. She took no steps to make over to the estate the assets she took on survivorship and she has opposed steps the applicant has taken in this proceeding to assert a claim on behalf of the estate.
[8] For the applicant to overcome his disinheritance, a number of successful proceedings appear to be required:
(a) An application to remove the respondent as executor of the estate under s 21 of the Administration Act 1969.
(b)An application by the new executor for leave under s 88(2) of the Property (Relationships) Act to bring a claim against the respondent, making out a case of serious injustice.
(c) An application by the new executor under the Property (Relationships) Act for division of relationship property against the respondent so as to get into the estate a share of the properties the respondent received on survivorship.
(d) An application for provision under the Family Protection Act 1955.
[9] These proceedings cannot all be brought in one court. The Family Court has an exclusive jurisdiction in property relationship claims.8 Only the High Court can hear applications to remove an executor. The High Court and the Family Court have concurrent jurisdiction for family protection claims.9 Applications under ss 143,
145, 145A and 148 of the Land Transfer Act 1952 in respect of s 42 notices can be brought in the Family Court, the District Court or the High Court.10
[10] Outlining the proceedings, as I have done, does not fully recognise the difficulties encountered and the stamina required for different proceedings in different courts at different times, in some cases relying on executors, before obtaining final relief. Family protection claimants invariably say that they are in need of proper maintenance and support from the estate. While their ability to make that claim at the date of death may be contested, it is foreseeable that with the time and expense of multiple proceedings, they will need further support by the end of the process.
[11] The applicant successfully applied to have the respondent removed as executor. Faire J ordered that she be replaced by an independent executor, Mr Badham.11 The applicant has started a family protection proceeding12 but that will not be able to be heard until any relationship property claim by the estate against the respondent has been decided.
[12] To the multiplicity of proceedings, the parties have added this application under s 145A of the Land Transfer Act. The applicant applied after the respondent required the Registrar-General to give the notice under s 145A(2).
[13] Although the notice of claim lodged by the applicant has been removed, it has been replaced by a notice of claim lodged by the new executor. The upshot is that the respondent has hardly been vindicated. She says, however, that while she cannot contest the notice of claim lodged by the new executor, she was entitled to
contest the notice lodged by the applicant. Her executorship gave her the sole right
8 Property (Relationships) Act 1976, s 22.
9 Family Protection Act 1955, s 3A.
10 Property (Relationships) Act, s 42(3).
11 Nawisielski [2014] NZHC 1547.
12 Within time under s 9 of the Family Protection Act.
to lodge a notice of claim on behalf of the estate. Her case is that it does not matter whether she was in a position of actual conflict where she would not use her powers as an executor to bring an application under s 88(2) against herself as the surviving widow, and she would not lodge a notice of claim on behalf of the estate against the titles to the properties which passed to her on survivorship. She says that if the applicant was concerned that she would dissipate assets so as to defeat any family protection claim, the applicant should apply for injunctive relief – more litigation. She denies breaching any duty as executor, but would say that the remedy for that is an administration action – more litigation.
[14] At first sight, the respondent has a point. A notice under s 42 of the Property (Relationships) Act is a notice of a claim under that Act. Section 23 of the Act states who may apply for orders dividing up relationship property. That includes:
(a) spouses or partners - or both of them jointly;
(b)any person faced with conflicting property claims by the spouses or partners; and
(c) in certain cases, the Official Assignee in bankruptcy.
[15] In the case of death, the surviving spouse or partner may claim. A personal representative of the deceased may apply only with leave under s 88(2). But there is no provision for a beneficiary of the estate of a deceased or a statutory claimant to relief from the estate to make a claim under the Property (Relationships) Act against the surviving spouse or partner. If an estate beneficiary or a statutory claimant do not have standing to sue, the argument goes that they cannot lodge a notice of claim under s 42.
[16] In submissions for the hearing, the applicant advanced two arguments for claiming a right to lodge a notice of claim for the estate. The first was misconceived. The applicant alleged that he was an executor de son tort. The respondent correctly
pointed out that the law as to executors de son tort is there to impose liabilities on those who intermeddle in an estate, not to confer powers.13
[17] The second argument relied on Priestley J’s decision in Love v Batterton14
and r 4.23 of the High Court Rules:
4.23 Trustees, executors, and administrators
(1) Trustees, executors, and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees, executors, or administrators.
(2) There is no need to join persons beneficially interested in a trust or an estate to a proceeding because the trustees, executors, and administrators represent those persons.
(3) However, the court may, at any stage, order that a beneficially interested person be made a party, either in addition to or instead of the trustees, executors, or administrators.
[18] In that case, Priestley J considered making an order under s 4.23(3) allowing a beneficiary to bring a proceeding on behalf of an estate. That decision led me to the case law on derivative proceedings, which have a long history in equity. I draw a distinction between derivative proceedings and cases under r 4.23(3). A beneficiary may bring a derivative proceeding on behalf of an estate or trust on showing special circumstances, but does not need an order of the court to bring the proceeding. The
beneficiary must join the trustee or executor as a defendant.15 Under r 4.23(3) a
beneficiary may be a party in addition to or instead of the trustee or executor, but only on court order. The beneficiary may take the part of defendant and special circumstances are not necessarily required.
[19] For this case it will be more convenient to consider the applicant’s right to bring a derivative proceeding rather than under r 4.23, which requires a court order.
[20] In my minute of 7 July 2014, I set out provisional views how the right to bring a derivative proceeding could be applied here:16
13 See s 52 of the Administration Act 1969.
14 Love v Batterton [2013] NZHC 742.
15 See generally Roberts v Gill & Co [2010] UKSC 22, [2011] 1 AC 240.
16 Nawisielski v Nawisielska HC Whangarei CIV-2014-488-54, 7 July 2014.
[7] To assist the parties with their submissions as to costs, I set out provisional views I have formed on the question of the applicant’s ability to lodge a notice of claim.
[8] The ability to lodge a notice of claim turns on the right to apply for orders under the Property (Relationships) Act. The relevant relationship property claim is under s 88(2).
[9] An executor of an estate has standing to apply under s 88(2). Cases such as Public Trust v Whyman17 indicate that in the circumstances of this case, the executor is likely to obtain leave because of serious injustice. An executor also has standing to lodge a notice of claim: Yeoh v Xu.18
[10] An executor has a duty of even-handedness to beneficiaries and to statutory claimants: Irvine v Public Trustee19 and Sadler v Public Trustee.20 As the executor was aware of the applicant and of his interest in claiming under the Family Protection Act, she was arguably in breach of her duty as an executor to get in the estate if she failed to bring a claim under s 88(2) against the survivor, namely herself.
[11] The applicant is not confined to remedies of requiring the executor to administer the estate properly and applying for her removal. In special circumstances, he may also bring a proceeding against a third party on behalf of the estate. This derivative proceeding has a long history. Equity recognised that while the general rule was that the management of the estate belongs to the executor, in special cases the beneficiary was entitled to sue derivatively for the estate. In Hayim v Citibank21 Lord Templeman said:
These authorities demonstrate that a beneficiary has no cause of action against a third party save in special circumstances which embrace a failure, excusable or inexcusable, by the trustees in the performance of the duty owed by the trustees to the beneficiary to protect the trust estate or to protect the interests of the beneficiary in the trust estate.
He cited Re Field,22 where a plaintiff was allowed to sue on a cause of action vested in personal representatives, where the personal representatives refused to sue, and there was no one interested in the estate except the plaintiff and the widow of the deceased, and the widow had a personal interest in the plaintiff’s claim being defeated.
[12] In Roberts v Gill Lord Collins said: 23
17 Public Trust v Whyman [2005] 2 NZLR 696 (CA).
18 Yeoh v Xu HC Auckland CIV-2003-404-2394, 3 December 2003.
19 Irvine v Public Trustee [1989] 1 NZLR 67 (CA).
20 Sadler v Public Trustee [2009] NZCA 364, [2009] NZFLR 937.
21 Hayim v Citibank [1987] AC 730 at 748.
22 R v Field [1971] 1 WLR 555 (Ch).
23 Roberts v Gill [2011] 1 AC 240 at [46].
The special circumstances which were identified in the earliest authorities as justifying a beneficiary’s action were fraud on the part of the trustee, or collusion between the trustee and the third party, or the insolvency of the trustee, but it has always been clear that these have been examples of special circumstances and that the underlying question is whether the circumstances are sufficiently special to make it just for the beneficiary to have the remedy.
[13] In this case there was not just collusion between the executor and the third party, there was identity.
[14] When probate was granted, the respondent (the executor) was aware of the interest of the applicant as a family protection claimant, but she would not take any steps under s 88(2) to increase the size of the estate for the benefit of the applicant and any other family protection claimants. Those are arguably special circumstances which would allow the applicant to make a derivative claim.
[15] As a matter of procedure the applicant would need to begin a proceeding under s 88(2) joining the respondent in two capacities – one as executor and the other as debtor of the estate. So long as he can make out special circumstances, he does not need prior leave of the court.24
[16] As it is arguable for the applicant that he would have standing to sue derivatively on behalf of the estate under s 88(2), he would also have the right to lodge a notice of claim under s 42 of the Property (Relationships) Act at the time when he did so.
[17] I note that the “special circumstances” have ceased to operate now that there is an independent executor. The applicant can accordingly step aside and allow the independent executor to run matters.
[21] In setting out these provisional views, I assumed for the applicant that the following were arguable:
(a) That an executor would be able to make out a case of serious injustice under s 88(2) of the Property (Relationships) Act and would obtain leave to bring a claim against the respondent.
(b)That the properties owned in joint tenancy were relationship property under s 8(1)(c) of the Property (Relationships) Act.
24 See Roberts v Gill [2011] 1 AC 240 at [103] per Lord Walker.
(c) Subject to any adjustments for circumstances arising after death, and subject to recognition of any interest of the respondent’s parents in the Orewa property, there would be equal division of relationship property under s 11 of the Property (Relationships) Act.
(d)The assets in the estate of the deceased were not sufficient to meet all potential family protection claims, unless supplemented by the proceeds of a successful claim under s 88 of the Property (Relationships) Act.
(e) While executor, the respondent was in breach of her duties to get in assets of the estate in the interests of statutory claimants.
[22] The applicant does not have to prove his case to any higher standard. [23] Against the provisional views, the respondent submits:
(a) There can be no derivative proceedings for applications under the
Property (Relationships) Act.
(b)The applicant was in a situation of conflict and could therefore not bring a derivative proceeding.
(c) Derivative proceedings cannot apply to notices of claim under s 42 of the Property (Relationships) Act.
(d)The notice itself was in breach of the Property (Relationships) Act and its regulations and cannot be sustained.
(e) The respondent did not breach any recognised duties.
There can be no derivative proceedings for applications under the Property
(Relationships) Act
[24] The respondent submits that the provisions of the Property (Relationships) Act, especially as to standing, and case law recognise that after death the only person
who can bring a claim against the surviving spouse or partner is the personal representative of the deceased. Generally, the cases the respondent relies on are cases where the surviving spouse or partner has been removed as executor and a new, independent executor has been appointed so as to enable a claim to be brought. It has been assumed that a beneficiary of the deceased estate or a statutory claimant has no right to sue, but the right to bring a derivative proceeding has not been argued.
[25] There is nothing in the text of the Property (Relationships) Act that expressly addresses the question of a derivative proceeding. Provisions such as s 4 (as to the Act replacing the rules and presumptions of the common law and equity to the extent they apply to transactions between spouses and partners in respect of property) do not bear on the question. Section 88 of the Property (Relationships) Act, which gives personal representatives the right to claim on a cause of action available to the deceased, is no different from the position under the general law that only personal representatives may sue on causes of action available to the deceased or to the estate. Equity, however, has in cases of special circumstances allowed beneficiaries to sue on behalf of the estate in cases of conflict of interest or collusion. This ability to sue derivatively supplements the power of a personal representative to sue under the general law. There seems to be no good reason why the principle allowing derivative proceedings in special circumstances should not also apply to claims under the Property (Relationships) Act.
[26] There is only one decision which has considered the question: Ramage v Alpers,25 a case under both the Partnership Act 1908 and the Matrimonial Property Act 1963. There were both claims and cross-claims. The beneficiaries of the deceased wished to sue under r 77, the predecessor of r 4.23(3). William Young J held against them because the executor, who was independent, became actively involved in upholding the interests of the estate against the surviving spouse. Accordingly, special circumstances did not apply. The judge recognised the availability of a derivative proceeding, although he did not describe it as such. He said:26
It is the law that in certain circumstances a beneficiary in an estate may commence proceedings in his or her own name on behalf of the estate providing the executor is joined as a party. This may arise where the executor refuses to participate in the litigation and the situation is such that participation by the estate in the litigation is obviously appropriate. This may also extend to cases where the executor has a conflict of interest which makes it difficult or impossible for a particular claim to be advanced or defended. The authorities and principles as to this are reviewed in the judgment of Goff J in Field v Firmenich & Co [1971] 1 All ER 1104.
The rules as to when a residuary beneficiary may, without court order, sue or defend proceedings relating directly to the estate do not necessarily control the circumstances in which the rule 77 discretion should be exercised. But the cases in which such orders have been made suggest that similar considerations are material. On the whole, the cases in which this issue has arisen involve conflict of interests between the executor and the beneficiaries.
[27] That appears in the part of the judgment dealing with the claim under the Partnership Act. In relation to the claim under the Matrimonial Property Act he said:27
The position as to the Matrimonial Property Act claim is pretty much the same as in relation to the Partnership Act claim. There is, however, this difference – it is by no means uncommon for beneficiaries to be joined as parties to such a claim.28
…The difficulty, however, is that there are claims both ways. It is perfectly clear (and it is now accepted by the residuary beneficiaries) that they cannot mount a claim against Mrs Ramage under the Matrimonial Property Act in the name of the estate. The current position is the executor will be defending the Matrimonial Property Act claim and will be counterclaiming. It would create an unnecessarily artificial situation to permit Mrs Ramage’s matrimonial property claim to be resisted by the beneficiaries as well, but in circumstances where they will not be heard in support of interlocking claims against Mr Ramage by the estate.
[28] I do not read that as precluding a derivative claim absolutely. Given the findings that the executor was taking an active part in resisting the widow’s matrimonial property claim and in pursuing a claim on behalf of the estate, an order joining the beneficiaries as parties to the matrimonial property proceeding was unnecessary. The decision does not support the respondent’s submission.
[29] There is nothing in the nature of a proceeding under s 88(2) of the Property (Relationships) Act that precludes the availability of a derivative proceeding if requirements for special circumstances are made out.
[30] The respondent also referred to a dictum of Lord Walker in Roberts v Gill & Co that in order to bring a derivative case there is a need to avoid an injustice. She submitted that instead of suing derivatively, the applicant had other reasonable means available to him - such as applying for the respondent to be removed and seeking interim relief to preserve property. That submission is not directed at the general proposition that a derivative proceeding cannot be brought under s 88(2) of the Property (Relationships) Act, but at the circumstances of this case. As to that, the special circumstances are to be assessed against the position that the executor was the sole beneficiary of the estate, she had received very significant assets by survivorship and it was in her interests not to bring any property relationship claim against herself, but to block any attempts by the applicant to have her step aside. She had ignored the applicant’s suggestion that she not become executor, and had taken a grant of probate, knowing that that would stand in the way of the applicant’s attempts to obtain relief from the estate. More litigation, which may be more arduous, is hardly the answer to a claim of special circumstances.
The applicant was in a situation of conflict and could therefore not bring a derivative proceeding
[31] The respondent argues that the applicant was not eligible to be appointed as executor because he would be in the same conflicted position as she.29 Because the applicant may not be able to hold the office of executor does not mean he is precluded from bringing a derivative proceeding on behalf of the estate. A beneficiary suing derivatively remains a beneficiary and does not become an executor.
Derivative proceedings cannot apply to notices of claim under s 42 of the Property
(Relationships) Act
[32] The respondent cited caveat cases, Sims v Lowe and Kilmartin v Monk.30 She submitted that caveat cases have established that there must be a property right in existence at the time the caveat is lodged. That reasoning does not apply to notices of claim under s 42 of the Property (Relationships) Act. A spouse lodging a s 42 notice does not have a property interest but only a claim to an interest. That claim may be realised only upon a court making orders under Part 7 of that Act. It is the ability to claim an interest that gives the right to lodge the notice. The right of an executor to lodge a notice of claim is undisputed. That right arises because of the ability to make a claim under s 88(2). A beneficiary with the right to bring a derivative proceeding because of special circumstances has the same right as a personal representative to lodge a notice of claim under s 42.
[33] The respondent also submitted that the applicant must first obtain leave of the court to lodge a notice of claim. In that, the respondent tried to assimilate the derivative proceeding to an order made under r 4.23(3) of the High Court Rules. The respondent goes further, and says that the court would be bound to refuse the order because the applicant has an interest in the outcome. That submission, I think, ignores the fact that a derivative proceeding can be brought as of right in an application to sustain a notice of claim lodged by a derivative claimant. The question is whether it is arguable that there are special circumstances allowing the derivative claimant to make a claim under s 88, and accordingly conferring the right to lodge a notice of claim.
The notice breached the Property (Relationships) Act and the Property
(Relationships) Regulations and cannot be sustained
[34] One matter on which I feel some uncertainty is the correct way to lodge a notice of claim when the person lodging is a derivative claimant. The forms do not appear to contemplate notices of claims lodged by persons in the circumstances of the applicant. However, in what is essentially a new case, I would not have ruled against the applicant on a matter of procedure.
The respondent has not breached any recognised duty
[35] The respondent accepts that in Irvine v Public Trustee,31 the Court of Appeal held that an executor has a duty of even-handedness to beneficiaries and to statutory claimants. The respondent contends that she has not breached this duty.
[36] As executor, the respondent had a duty to get in assets of the estate to meet claims. The applicant’s arguable right to make a family protection claim stands in the way of the respondent contending that whatever assets there are in the estate of the deceased are ultimately for her exclusive benefit. As executor of the estate, she has opposed having a notice of claim lodged against the properties she took by survivorship and has opposed efforts by the applicant to have the estate of the deceased augmented by a relationship property share of those assets. In that, she was preferring her interests to her duties as executor. She was arguably in breach of her duties as executor.
[37] The respondent’s submissions concluded with a floodgates argument. It was contended that allowing a derivative claimant to lodge a notice of claim would have a serious precedential effect. On this, it is appropriate to note Professor Cornford’s description of the principle of the dangerous precedent32:
The Principle of the Dangerous Precedent is that you should not now do an admittedly right action for fear you, or your equally timid successors, should not have the courage to do right in some future case, which, ex hypothesi, is essentially different, but superficially resembles the present one. Every public action which is not customary, either is wrong, or, if it is right, is a dangerous precedent. It follows that nothing should ever be done for the first time.
[38] It is true that a notice of claim has not been recognised in these circumstances before. Aside from the judgment in Ramage v Alpers, derivative proceedings by beneficiaries and statutory claimants on behalf of deceased estates under s 88(2) of the Property (Relationships) Act have also not been recognised before. That does not
mean that there should not be a first time. Recognising these rights offers a
31 Irvine v Public Trustee
32 F M Cornford Microcosmagraphia Academica (Bowes & Bowes Publishers Ltd, Cambridge,
1908).
principled way by which property relationship claims can be recognised and upheld in accordance with the Property (Relationships) Act. The respondent’s contrary position is that so long as she is executor, she can use that position to prevent any claims being brought against herself as a surviving spouse and she can deal with the assets she received under survivorship as she thinks fit. Under her case, the applicant must run a gamut of proceedings without being able to use a notice of claim, a standard means of protection available to relationship property claimants. Unlike other people facing relationship property claims, she need not be bothered by notices of claim lodged against property that can be the subject of a relationship property claim. That position is ultimately undeserving and unmeritorious. It does not give good reason to reject the applicant’s right to lodge a notice of claim.
[39] The position reached so far is that there is no justification for the respondent to have an order for costs. The applicant had good grounds for lodging the notice of claim and for applying to prevent its lapse. Once a new executor was appointed, the applicant’s discontinuance was sound, because the special circumstances allowing a derivative claim no longer applied.
[40] There is, however, one aspect on which the respondent is entitled to costs: the applicant’s non-compliance with timetable directions. The applicant did not file submissions on time. The applicant was required to file and serve submissions by 16
June 2014, together with a casebook. The applicant did not file submissions until 30
June 2014, a week after the respondent was required to file her submissions. The respondent prepared the casebook.
[41] That non-compliance must have caused difficulties to the respondent. In the circumstances, I award the respondent costs for a half day under category 2 for the disruption caused by the delay in filing submissions, and .6 of a day under step 41 for preparing the bundle of documents, a total of 1.1 days. I accordingly order the applicant to pay the respondent costs of $2,189.00.
………………………………….
Associate Judge R M Bell
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