Pollock v Pollock - [2020] NZHC 1751

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV 2017-470-000060

[2020] NZHC 1751

BETWEEN
STEPHEN REX POLLOCK

Plaintiff

AND

CHERYL LINDA POLLOCK and PETER

EDMOND WASHER as executors, trustees and administrators of the Estate of R D Pollock
First Defendants

AND

CHERYL LINDA POLLOCK

Second Defendant

AND

CHERYL LINDA POLLOCK and CLM

TRUSTEES as trustees of the Judea Valley Trust

Third Defendants

Hearing: On the papers

Counsel:

D Fraundorfer and P R Allan for Plaintiff P J Morgan QC for Second Defendant

K J Catran for First and Third Defendants

Judgment:

20 July 2020

JUDGMENT OF VAN BOHEMEN J

[as to costs]

This judgment was delivered by me on 20 July 2020 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

Solicitors/Counsel:
Holland Beckett Law, Tauranga Neverman Bennett, Hamilton Rejthar Stuart Law, Tauranga

POLLOCK v POLLOCK [as to costs] [2020] NZHC 1751 [20 July 2020]

Introduction

[1] In my judgment dated 25 March 2020 in the proceeding brought by the plaintiff, Steven Pollock, and in two related proceedings brought by Steven’s sister,
Letitia Pollock:1

(a)I dismissed the claims made by Steven and Letitia against the defendants under the Trustee Act 1956, the Administration Act 1969, the Law Reform (Testamentary Promises) Act 1949, and pt 18 of the High Court Rules 2016;

(b)I found that Steven and Letitia had made out their claims for provision to be made for them under the Family Protection Act 1955 from the estate of their father, Rex Pollock, but I was unable to make any awards in their favour because there were no assets in the estate.

[2] Because the defendants had been the overall successful parties, I held that they were entitled to costs against Steven on a 2B basis but recorded that because Letitia had been legally aided, in accordance with s 45(2) of the Legal Services Act 2011, the Court would have to be satisfied that there were exceptional circumstances before ordering costs against her.2 I recorded that if the parties were unable to agree costs, they may file memoranda.3

Memoranda of counsel

[3] As set out in a memorandum dated 28 April 2020 from Mr Morgan, counsel for the second defendant, Cheryl Pollock, Cheryl seeks costs of $108,266.50 plus disbursements of $10,023.77.

[4] As set out in a memorandum dated 29 April 2020 from Mr Catran, counsel for the first defendants, the executors and trustees of Rex’s estate, the executors and trustees seek costs of $32,669.00 and disbursements of $330.00, principally for

1 Pollock v Pollock [2020] NZHC 648.
2 At [332].
3 At [333].

interlocutory steps taken prior to the hearing. The executors and trustees undertook to abide by the decision of the Court and did not take an active part in the hearing.

[5] As set out in a memorandum dated 30 April 2020 from Mr Scott, counsel the third defendant, CLM Trustees Ltd as trustee of the Judea Valley Trust (JVT), CLM…

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 Pollock v Pollock

Details

AGLC: Pollock v Pollock [2020] NZHC 1751
Case: [2020] NZHC 1751
Decision Date: 20 July 2020

CaseChat Overview and Summary

The case of Pollock v Pollock involves a dispute between Steven Pollock and various defendants, including Cheryl Pollock, the executors and trustees of Rex Pollock's estate, and CLM Trustees Ltd as trustee of the Judea Valley Trust (JVT). Steven, the son of Rex, sought to challenge his father's testamentary arrangements, which he believed unfairly excluded him from inheritance. The legal issues revolved around the allocation of costs in the proceedings, with Steven arguing that his costs should be borne by the JVT due to his father's alleged fault in making inter vivos transfers to defeat Steven's Family Protection Act claim. The court was also required to consider if there were reasonable grounds for Steven to allege undue influence by Cheryl and whether the defendants' costs should be reduced for any reason.

The court declined Steven's application that his costs and disbursements be met by the JVT. It reasoned that the litigation did not originate from Rex's fault, as Rex's testamentary arrangements were considered and deliberate, and not eccentric or irrational. Although Steven had reasonable grounds to allege undue influence, the court found that the prospects of succeeding with such a claim were not promising. Furthermore, the court held that making the JVT bear Steven's costs could encourage other disappointed beneficiaries to challenge their parents' arrangements, which would be detrimental to the beneficiaries of the trust. The court also rejected the other grounds for reducing the defendants' costs, finding them to be reasonable and appropriate.

As a result, the court ordered that Steven Pollock pay the costs and disbursements to the defendants as follows: $32,999.00 to the executors and trustees of Rex Pollock's estate, $118,290.27 to Cheryl Pollock, and $75,148.00 to CLM Trustees Ltd as trustee of the Judea Valley Trust.

Orders