Pratley v Courteney

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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

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.
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 Alternatively, Mr Fowler seeks an order that the costs order be rescinded and replaced with a direction that he is entitled to the benefit of the indemnity.
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.
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

The application for recall is declined.

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

CaseChat Overview and Summary

In the case of Pratley v Courteney, the appellant, Lance Howard Pratley, sought clarification or a recall of a previous judgment issued by the Court of Appeal on 17 October 2018. The initial judgment allowed Pratley's appeal against a High Court ruling that he should bear the costs personally for defending District Court proceedings in his role as trustee and executor. The Court of Appeal had ruled that the reasonable costs incurred by Pratley in this capacity should be met from the assets of the estate. Additionally, the Court ordered that the first respondent, Steven Courteney, a beneficiary, would be responsible for paying costs on the appeal and the usual disbursements.

The current dispute revolves around Pratley's entitlement to access his indemnity for various costs. Pratley, represented by R J B Fowler QC, argued that the party and party costs order should not preclude his right to indemnity as a trustee and executor from the estate assets. Alternatively, Fowler sought an order rescinding the costs order and replacing it with a direction affirming Pratley's entitlement to the indemnity. The respondents, represented by J M Morrison, contended that Pratley's memorandum should be treated as an application for recall, governed by the principles established in Horowhenua County v Nash (No 2). Morrison argued against the recall, asserting that there was no justification and that the costs dispute included amounts unrelated to the appeal, such as costs incurred after Pratley ceased to be an executor.

The Court of Appeal accepted Morrison's submissions and declined Pratley's application for recall. The Court reasoned that any clarification sought by Pratley would necessitate recalling the judgment, which they found unjustified. Consequently, the appeal for recall was dismissed, maintaining the original judgment's terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established