Pratley v Courteney

[2019] NZCA 28

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA40/2018
 [2019] NZCA 28

BETWEEN	LANCE HOWARD PRATLEY Appellant
AND	STEVEN COURTENEY First Respondent
AND	KLAUDIA ARIANE COURTENEY Second Respondent

Court:	Gilbert, S France and Dunningham JJ
Counsel:	R J B Fowler QC for Appellant J M Morrison for Respondents
Judgment: (On the papers)	4 March 2019 at 11 am

JUDGMENT OF THE COURT

The application for recall is declined.

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REASONS OF THE COURT

(Given by Gilbert J)

1. In a judgment delivered on 17 October 2018, we allowed Mr Pratley’s appeal against a judgment of the High Court directing him to bear personally the costs of defending District Court proceedings in his capacity as a trustee and executor.[1]  We directed that the reasonable costs and expenses incurred by Mr Pratley in this capacity were to be met from the assets of the estate.  We also made an order requiring the first respondent, a beneficiary, to pay costs on the appeal assessed on a band A basis and usual disbursements. 

   [1]Pratley v Courteney [2018] NZCA 436, [2018] NZAR 1787.

2. Following delivery of the judgment, a dispute has arisen between the parties about Mr Pratley’s entitlement to access his indemnity for various costs.  Mr Fowler QC filed a memorandum on Mr Pratley’s behalf seeking a direction that the party and party costs order was not intended to displace Mr Pratley’s right of indemnity as a trustee and executor from the assets of the estate.  Alternatively, Mr Fowler seeks an order that the costs order be rescinded and replaced with a direction that he is entitled to the benefit of the indemnity.

3. Mr Morrison for the respondents contends that, although not framed as such, Mr Fowler’s memorandum must be treated as an application for recall and determined in accordance with the well-established principles set out in Horowhenua County v Nash (No 2).[2]  He submits there is no justification for the Court to recall its judgment.  Mr Morrison also advises that the costs dispute extends to amounts claimed that are unrelated to the appeal and include costs incurred after Mr Pratley ceased to be an executor.  Mr Morrison cautions that the Court should refrain from making any comment or direction that might restrict the respondents’ ability to advance their position in the dispute.  

   [2]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

4. We accept Mr Morrison’s submissions.  We consider the clarification Mr Pratley seeks would require the Court to recall the judgment.  In our view, there is no justification for the judgment to be recalled.       

Result

1. The application for recall is declined.

Solicitors:
Lance Pratley Law, Wellington for Appellant
WCM LEGAL, Carterton for Respondents