Patel v Patel

[2014] NZHC 1042

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4384 [2014] NZHC 1042

IN THE MATTER OF

the estate of the late Kamalavati Patel

UNDER

section 21 of the Administration Act 1969 and section 51 of the Trustee Act 1956

BETWEEN

USHA PATEL, ASHOK DAJI and

SANJAY PATEL Plaintiffs

AND

USHA PATEL, PRETIMA PATEL, Solicitor, of Bangkok, as the executors and trustees of the estate of the late KAMALAVATI PATEL

Defendants

Hearing:	15 May 2014
Appearances:	S McCarthy for the Plaintiff A Gilchrist for the second named defendant
Judgment:	15 May 2014

JUDGMENT OF S E THOMAS J

Solicitors:

S McCarthy, DG Law, Manukau

A Gilchrist, Barrister, Auckland

PATEL, DAJI and PATEL v PATEL, PATEL, Solicitor, of Bangkok, as the executors and trustees of the estate of the late PATEL [2014] NZHC 1042 [15 May 2014]

[1] The issue surrounds a family and their mother’s estate.

[2] The two named defendants were named in the will as executors and trustees. [3] Pursuant to the will the estate is divided equally between all five children.

[4] At issue between the children seems to be a residential property at 7 Dorset

Street, Westmere.

[5] The legal title to the property is in the name of Pretima Patel, a defendant and executor.  It appears that the dispute surrounds that property and whether she holds it on trust for Harshad Patel.  The other members of the family dispute that and believe that the property forms part of their mother’s estate.

[6] There are related proceedings which have been commenced by Harshad Patel, alleging that the property is held by Pretima Patel on trust for him.  The plaintiffs oppose that claim.

[7] The plaintiffs’ position is that it was evident right from the outset that Pretima Patel was in a conflicted position and could not in the circumstances act as executor under the will.  Hence the application today.

[8] The other defendant has consented to being removed as executor and trustee and consented to the appointment of the Public Trust as replacement administrator and trustee.  The Public Trust has consented to that appointment.

[9] Pretima Patel has filed an appearance for ancillary purposes, stating that she does not oppose the application.  That being the case the application is granted without opposition.

[10]     There is then the residual question of costs and that is what has occupied the bulk of time this afternoon, not made easier by the fact that an affidavit as to costs which was apparently filed some days ago had not reached the file.

[11]     The applicant seeks the full costs of the application in the sum of $7,885 which I think is somewhat less than scale costs would have been.

[12]     Pretima Patel suggests that 3/5 of that amount should be paid by the estate and all of her costs relating to these proceedings $2,750 should be paid by the estate. The basis for this suggestion of 3/5 only of the plaintiffs’ costs being paid by the estate seems to be because she feels aggrieved at the way in which the application was dealt with.  She believes it could have been dealt with by agreement.  That is clearly not the position of the plaintiffs.  They maintain that the original co-trustee, Usha Patel, had always viewed the property as forming part of the estate despite what Pretima Patel says.

[13]     These types of disputes are always unfortunate.   The real danger that the parties run is that the assets of the estate are quickly depleted when the parties embark on legal proceedings and incur legal costs.

[14]     In saying that however, I accept that Pretima Patel as executor and trustee had an obligation to take advice as to the correct course in this application and that, in such a case, her costs should be met from the estate.

[15]     I have some concern at the way in which there has been a calculation of time because the costs she refers to in her affidavit refer to costs to date, that is in connection with the application but of course she has counsel appearing today.   In the round however, and I say this because having viewed the affidavit evidence I am not satisfied that the position is entirely as Pretima Patel would have it with regard to the attitude taken by her co-trustee and co-executor, in my discretion I award costs to Pretima Patel of $2,180. That is calculated on a scale basis in relation to appearances and preparation for attendance at Court.  Those costs are to be paid out of the estate.

[16]     The costs sought by the plaintiffs are also to be paid by the estate.

Thomas J