O'Keeffe v Jones - [2018] NZHC 2482

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-472 [2018] NZHC 2482

BETWEEN
ANGELA O’KEEFFE

Applicant

AND

DAIL MICHAEL JOHN JONES Respondent

Hearing: 10 August 2018

Appearances:

K E Wiseman for the Applicant
D M J Jones, the Respondent in person

Judgment:

21 September 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 21 September 2018 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:
K Wiseman, Barrister, Auckland
Vodanovich Law, Auckland

Copy to:
The Respondent

O’KEEFFE v JONES [2018] NZHC 2482 [21 September 2018]

Summary

[1] Ms Angela O’Keeffe and Mr Dail Jones were trustees of an estate. They disagreed on a variety of aspects of its administration. Ms O’Keeffe asked Mr Jones to step down but he refused and invited her to take legal proceedings. Ms O’Keeffe applied to the High Court to have Mr Jones or both of them removed as trustee. Mr Jones consented to both of them being replaced by the Public Trust. Then he opposed Ms O’Keeffe’s costs on the application being met from the estate. Ms O’Keeffe acted reasonably in bringing the application and was successful in doing so. Mr Jones’ conduct unnecessarily required the application and prolonged the proceedings. I order Mr Jones to pay Ms O’Keeffe’s costs personally, on an indemnity basis, with the reasonableness of the costs to be assessed by a senior barrister.

What happened?

The O’Keeffes and the estate

[2] Mr Daniel O’Keeffe died in March 2009 aged 85. He had seven children, one of whom has since died. In his will, he appointed his fourth child, Ms O’Keeffe, and his solicitor, Mr Jones, as trustees. His estate consisted of a property in Waitakere, some cash and personal effects. His will forgave a debt to a family trust relating to one of his daughters, and gave a life interest in his estate to his wife, Mrs Mary O’Keeffe (known as Molly). The life interest was on condition their daughter Ms Maria O’Keeffe and her family be allowed to remain living in the dwelling Maria had built on the property. When Mrs Molly O’Keeffe died, Maria was to receive the value of her home from the estate, and the residual estate was to be divided between five of the children. Mrs Molly O’Keeffe died in July 2017. Not all of the siblings, who are in their 50s and 60s, are on good terms.

Problems with estate administration

[3] Mr Jones and Ms O’Keeffe have not seen eye to eye on administration of the estate. Each has accused the other of misconduct. Things came to a head in September
2017 when the trust’s bank account became overdrawn and outgoings went unpaid.

[4] On 13 October 2017, Ms O’Keeffe wrote to Mr Jones saying there was a deadlock between them, trust debts were not being met, he was in breach of trust by refusing to make necessary payments 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 O'Keeffe v Jones

Details

AGLC: O'Keeffe v Jones [2018] NZHC 2482
Case: [2018] NZHC 2482
Decision Date: 21 September 2018

CaseChat Overview and Summary

Ms Angela O’Keeffe and Mr Dail Jones were trustees of a family estate. They were in a deadlock over how it should be administered. Ms O’Keeffe applied to the High Court to have Mr Jones removed as trustee and replaced by the Public Trust. Mr Jones consented to being replaced but opposed Ms O’Keeffe’s application for costs. Ms O’Keeffe successfully applied to the court to have Mr Jones removed and to have her costs paid personally by him. The court found Ms O’Keeffe acted reasonably in bringing the application, as the deadlock made it necessary. Mr Jones had refused to resign, had acted antagonistically, and his opposition to the costs was unreasonable. Ms O’Keeffe’s costs were to be assessed by a senior barrister, with the estate to pay the barrister’s fees.

The court determined the parties’ respective stances in bringing and opposing the application. It found Ms O’Keeffe acted reasonably in bringing the application to the court. Mr Jones had been given plenty of warning he would be opposed but had refused to step down. He had acted antagonistically and unnecessarily opposed the costs. Ms O’Keeffe had not acted vexatiously, frivolously, improperly, or unnecessarily in bringing the application. The court found Mr Jones should pay Ms O’Keeffe’s costs personally, on an indemnity basis, because his conduct had prolonged the proceedings unnecessarily. The beneficiaries should not bear the cost of Mr Jones’ unreasonable conduct. The court ordered a senior barrister to review the reasonableness of Ms O’Keeffe’s costs, with the estate to pay the barrister’s fees.

Orders