Pool v Van Russel

[2019] NZHC 3035

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-606950

[2019] NZHC 3035

IN THE MATTER

of the Estate of LENA JOHANNA MEIER of Paraparaumu, Deceased

BETWEEN

BRIGITTE URSEL POOL

Applicant

AND

CHRISTINE LENA VAN RIJSSEL

Respondent

On the papers

Counsel:

D S Lester for Applicant

M A Twentyman for Respondent

Judgment:

20 November 2019

JUDGMENT OF THOMAS J (COSTS)

[1]                  Brigitte Pool and Christine van Rijssel were executors and trustees of the estate of their late mother. Given their inability to work together to discharge their duties, this Court removed them by consent as executors and trustees and appointed the New Zealand Guardian Trust Company Limited (Perpetual Guardian) as executor and trustee.

[2]The question of costs is now addressed.

[3]                  Ms Pool, who was the applicant in the proceedings, seeks that her costs on a 2B basis be paid by Ms van Rijssel, the respondent, personally. If that is not accepted, Ms Pool seeks that her costs are paid from the estate. No information has been filed with the Court as to the level of those costs.

POOL v VAN RIJSSEL [2019] NZHC 3035 [20 November 2019]

[4]                  Ms van Rijssel opposes Ms Pool’s application that she should be personally liable for Ms Pool’s costs and, through counsel, maintains that Ms Pool’s costs should be met by the estate. In addition, Ms van Rijssel seeks that her costs should also be met by the estate, calculated on a 2B basis, which amounts to $1,370.00.

Background and submissions

[5]                  There is quite some background to this matter, going back to the parties’ father’s estate. It seems Ms Pool and Ms van Rijssel have been estranged for many years and were unable to work together to carry out their duties as executors and trustees of their father’s estate. This resulted in this Court making orders by consent removing them and, in their place, appointing the Public Trust.

[6]                  It appears that Ms van Rijssel was the instigator of the same form of application in another case involving the parties’ father’s estate. She requested several times that Ms Pool agree to the appointment of an independent trustee in that case. Given no agreement, she applied to this Court and Ms Pool consented to the orders sought one day prior to the first call. Costs was an issue then and Ronald Young J ordered that both parties were entitled to costs, considering that Ms Pool had taken a responsible attitude in the circumstances.

[7]                  Ms Pool’s application for costs is on the basis that, given the  background,  Ms van Rijssel did not act reasonably in delaying agreement to the replacement trustee in respect of the parties’ mother’s estate. She maintains that, rather than agree with the proposed retirement/appointment, or even suggest other options, she sought instead to follow a “somewhat irrelevant line of inquiry” and then “take no steps”. Consent was finally obtained on the last working day prior to the first call of the matter.

[8]                  In response, Ms van Rijssel provides evidence that, in October 2016, she, through her lawyers’ letter, wrote to Ms Pool’s lawyers saying that the same situation existed with respect to the parties’ mother’s estate as applied to their father’s estate.

She suggested therefore that the Public Trust should be appointed to administer it. The letter concluded:

Please let us know if your client would agree to that course of action, thereby avoiding the need to incur the costs of an application to the High Court.

[9]                  Ms Pool was reluctant to approach the High Court until she was provided with certain information regarding the estate.

[10]              Ms van Rijssel persisted to seek Ms Pool’s agreement to the appointment of the Public Trust by letters dated 7 February, 29 June and 21 December 2017. In the letters of 29 June and 21 December, Ms van Rijssel’s lawyers noted that they were preparing the necessary documentation for an application to the Court.

[11]              It was not until 18 April 2018 that Ms Pool confirmed her agreement. However, it seems the Public Trust did not consent to its appointment. In January 2018, Ms Pool advised Ms van Rijssel of that but provided no further explanation. She suggested Perpetual Guardian be appointed instead.

[12]              The delay in Ms van Rijssel’s consent was because she requested copies of the correspondence between Ms Pool and the Public Trust. Ms Pool apparently refused to provide this, resulting in Ms Pool making the application to the Court.

[13]              It is indeed unfortunate that the parties’ mutual hostility has resulted not only in delay in the administration of the estate, but also no doubt increased legal costs.

Result

[14]              I am satisfied in the circumstances it would be unjust for a costs award to be made against Ms van Rijssel personally in respect of Ms Pool’s costs. I accept that Ms van Rijssel’s behaviour was reasonable in the context of the history of not only the current proceedings but the previous proceeding in respect of the parties’ father’s estate.

[15]              For these reasons, I direct that Ms van Rijssel’s costs are met by the estate in the sum of $1,370.00 (being calculated on a 2B basis). Ms Pool’s reasonable costs,

properly incurred, should also be met by the estate. In the event of any disagreement, the matter is to be referred back to me.

Thomas J

Solicitors:

McCabe and Company, Wellington for Applicant Morrison Kent, Wellington for Respondent