Public Trust v Hislop - [2016] NZHC 1578

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003297 [2016] NZHC 1578

UNDER the Property (Relationships) Act 1976

BETWEEN

PUBLIC TRUST AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SUZANNE HEAVEN (FORMERLY KNOWN AS SUZANNE WYATT) Appellant

AND

JAMES STEWART HISLOP Respondent

On the papers

Appearances:

D M Kennedy for Appellant
A E Ashmore for Respondent

Judgment:

12 July 2016

JUDGMENT OF GILBERT J [COSTS]

This judgment is delivered by me on 12 July 2016 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:
Bramwell Grossman, Hastings (D M Kennedy) The Public Trust, Lower Hutt
A Ashmore, Barrister, Ponsonby, Auckland

PUBLIC TRUST v HISLOP [2016] NZHC 1578 [12 July 2016]

Introduction

[1] Mr Hislop seeks costs orders pursuant to s 45 of the Legal Services Act 2011 following his successful appeal from a decision of the Family Court and in relation to an application for leave to appeal to the Court of Appeal that was withdrawn after the hearing.1

Background

[2] Mr Hislop and Suzanne Heaven (the deceased) lived together in a de facto relationship for approximately 22 months prior to Ms Heaven’s death on
8 April 2005. In February 2004, they jointly purchased a property at Warkworth which became their home. It appears that this property was funded by the proceeds of sale of a property belonging to the deceased and a mortgage. The deceased left a will appointing Mr Hislop and her solicitor as executors and trustees. Mr Hislop was the sole beneficiary. Apart from her interest in the home, the deceased’s only assets at the time of her death comprised $246 in a bank account and a tax refund of $309. There was also a debt of $1,128.

[3] The executors did not apply for probate. They did not consider that this was necessary because the deceased’s interest in the home was extinguished upon her death and accrued to Mr Hislop. On that basis, the estate was very modest in value. The last asset to be distributed was the tax refund which was paid to Mr Hislop in August 2006.

[4] The deceased’s only child, Chante Heaven, contends that her mother breached her moral duty in failing to make any provision for her in her will. She has three children to care for, one of whom is disabled. She is not in employment and has few assets.

[5] On 19 December 2006, Ms Heaven filed an application for probate and for the appointment of Public Trust as executor of the estate. This was to enable
Public Trust to bring an application under the Property (Relationships) Act 1976 in

1 Hislop v Public Trust [2015] NZHC 1101.

respect of the deceased’s former interest in the home. If successful, this would allow

Ms Heaven to bring a claim against the estate under the Family Protection Act 1955.

[6] The application for probate was discontinued in June 2007 without being served. Ms Heaven says that this was done without her…

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 Public Trust v Hislop

Details

AGLC: Public Trust v Hislop [2016] NZHC 1578
Case: [2016] NZHC 1578
Decision Date: 12 July 2016

CaseChat Overview and Summary

In Public Trust v Hislop, the High Court of New Zealand considered an application for costs orders under the Legal Services Act 2011. The appellant, Public Trust as personal representative of the estate of Suzanne Heaven, had been involved in proceedings concerning the estate of the deceased, who had been in a de facto relationship with the respondent, James Stewart Hislop. The deceased had left a will appointing Mr Hislop as the sole beneficiary, but her daughter, Chante Heaven, claimed her mother had breached her moral duty by not making any provision for her in her will. Public Trust was appointed as the administrator of the estate and brought proceedings under the Property (Relationships) Act 1976, which were ultimately successful. Mr Hislop sought costs orders against Public Trust, arguing that there were exceptional circumstances justifying an award of costs.

The court found that Public Trust was not at fault for any of the circumstances relied upon by Mr Hislop. Public Trust had acted reasonably in facilitating the proceedings and seeking protection from any adverse costs award. It had no funding to independently consider the merits of the proposed appeal, and it was reasonable for it to rely on Ms Heaven's solicitors and the grant of legal aid. The time taken to clarify its position in relation to the application for leave to appeal was also not exceptional, as it had needed to review the relevant files and consult with others before responding to the court. Lastly, the fact that Public Trust could meet an award of costs did not constitute an exceptional circumstance, as it should not be discouraged from facilitating access to justice due to the risk of an adverse costs award.

Accordingly, the court dismissed Mr Hislop's application for an award of costs against Public Trust pursuant to s 45 of the Legal Services Act 2011. If it had not been for s 45 of the Act, Mr Hislop would have been entitled to an order for costs against Public Trust for all steps taken in this Court calculated on a category 2, band B basis.

Orders