Pratley v Courteney

[2020] NZHC 1636

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2019-435-19

[2020] NZHC 1636

UNDER

the Trustee Act 1956 and Part 18 of the High Court Rules

BETWEEN

LANCE HOWARD PRATLEY

Plaintiff/Respondent

AND

STEVEN COURTENEY

Defendant/Applicant

Hearing:	24 June 2020
Counsel:	R J B Fowler QC for plaintiff/respondent P W Michalik for defendant/applicant
Judgment:	9 July 2020

RESERVED JUDGMENT OF DOBSON J

[Defendant’s application to dismiss proceeding]

[1]                 This proceeding involves a claim by the plaintiff (Mr Pratley) to recover the unpaid balance of invoices for fees and disbursements incurred in undertaking work as a solicitor.

[2]                 In October 2015, the Court appointed Mr Pratley to be executor and trustee of the  estate  of  Joan  Ayleen  Courteney   in   substitution   for   the   defendant’s   (Mr Courteney’s) brother, who had originally obtained probate as executor of their mother’s estate. At the time, the estate was facing a claim in the District Court for reimbursement of expenses incurred  by  Mr Courteney  in  undertaking  care  for  Mr Courteney’s father. Mr Pratley took steps  on  behalf  of  the  estate  to  defend Mr Courteney’s claim in the District Court, but was unsuccessful in doing so.

PRATLEY v COURTENEY [2020] NZHC 1636 [9 July 2020]

[3]                 Subsequently, in December 2017, in the course of proceedings brought by  Mr Courteney in this Court under the Family Protection Act 1955, the Court disallowed Mr Pratley’s entitlement to recover from the estate the costs that had been incurred in unsuccessfully defending the District Court proceedings.1 Also in the family protection proceedings, orders were made by consent discharging Mr Pratley as an executor and trustee in the estate, and substituting Mr Courteney in that office.

[4]                 Subsequent to vacating the office of  executor  and  trustee  of  the  estate,  Mr Pratley pursued an appeal to the Court of Appeal against the High Court judgment that had disallowed his entitlement to claim the costs he had incurred in his capacity as executor in defending Mr Courteney’s District Court proceedings. The appeal was allowed, confirming Mr Pratley’s entitlement to indemnity for costs incurred in discharging his obligations as executor and trustee of the estate.2

[5]                 In these proceedings, Mr Pratley now seeks to recover two categories of costs. First, the balance of costs incurred up to 21 December 2017 when he ceased to act as executor and trustee, which totalled $34,598, less a payment made in June 2019 by Mr Courteney of $5,893.95 comprising the scale  costs  and  court  fees  to  which Mr Pratley would have been entitled for the High Court proceeding, had his position been vindicated in the December 2017 judgment.

[6]                 Mr Pratley also seeks the amount of $50,634.69, for the costs and disbursements he has incurred in steps taken since he ceased acting as executor and trustee of the estate, to establish his entitlement to an indemnity for all costs and expenses reasonably incurred in the work he undertook as executor and trustee. The gross amount of those costs has been reduced by a…