Public Trust v Rose

[2024] NZHC 1507

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000148

[2024] NZHC 1507

UNDER

Section 80 of the Public Trust Act 2001

AND

Part 19 of the High Court Rules

IN THE MATTER

an originating application for the

appointment of Public Trust as administrator of the Estate of Warren Thomas Rose

BETWEEN

PUBLIC TRUST

Applicant

AND

LYNETTE JOY ROSE as named executor of the Estate of Warren Thomas Rose Respondent

Hearing:	(On the papers)
Counsel:	D M Abriscossow for Applicant D D Vincent for Respondent
Judgment:	10 June 2024

JUDGMENT OF LA HOOD J

(Costs)

[1]    On 21 May 2024, I granted the Public Trust’s application for orders to be appointed  as  administrator  of  the  Estate  of  the   late  Warren  Thomas   Rose (the deceased).1 I was satisfied, pursuant to s 80 of the Public Trust Act 2001, that Mr Rose had died testate and an application for probate had not been made within three months after the date of his death. I was required to grant the application unless the deceased’s wife, Lynette Joy Rose, as executor of the deceased’s will, had either

1      Public Trust v Rose HC Wellington CIV-2024-485-148, 21 May 2024 (Minute of La Hood J).

PUBLIC TRUST v ROSE [2024] NZHC 1507 [10 June 2024]

applied for probate or satisfied me that the delay in making application was unavoidable or accidental. Mrs Rose did not attempt to establish those matters and did not oppose the application.

[2]The parties cannot agree on costs.  I am therefore required to determine them.

Background

[3]    The following background is drawn from my 21 May decision. The deceased passed away on 26 February 2023, leaving a will dated 28 April 2022. In addition to Mrs Rose, the deceased is survived by his two adult children from a previous marriage, Ricky George Rose (aged 55) and Ross Allan Rose (aged 57) (the children).

[4]    The deceased and Mrs Rose started living in a de facto relationship in about mid-2020 and were married on 30 October 2021. The deceased had assets of only

$6,985.11 in his sole name at the date of his death and Mrs Rose was not required to apply for a grant of probate if that was the full extent of his estate. However, Mrs Rose has retained substantial assets, which were jointly owned with the deceased. It is unclear exactly the extent of these assets, but Mrs Rose has at least a villa in a retirement complex and bank deposits that total more than $1 million.

[5]    The orders were necessary for the Public Trust, as personal representatives of the deceased, to continue its application to the Family Court for leave to apply for orders pursuant to the Property (Relationships) Act 1976 against Mrs Rose in relation to the substantial property retained by Mrs Rose (the PRA proceedings).

[6]    The deceased’s children have attempted to negotiate with Mrs Rose for a share of the assets retained by her but that has not resulted in a settlement. There have been negotiations between the parties’ respective solicitors during which Mrs Rose had confirmed she would not apply for probate on the basis that her view is that the estate of the deceased is of a size which does not require this. The children approached the Public Trust to apply for administration under s 80 of the Public Trust Act 2001.

Costs

[7]    The Public Trust seeks costs on a 2B basis against the estate rather than against Mrs Rose personally.2

[8]    Counsel for Mrs Rose submits that costs should lie where they fall as the application was a necessary precursor to the deceased’s claim in the Family Court and Mrs Rose did not oppose the application. Mrs Rose is a 79-year-old who has recently lost her husband and resides in a retirement village.

[9]    It is further submitted by counsel for Mrs Rose that any costs order may have a negative impact on the deceased’s children because the will, at cl 4, forgives the debts owed by the Rose Investment Trust, which means if the estate is indebted to the Public Trust for costs, then forgiveness of debt will in effect mean the Rose Investment Trust will be called on to pay the costs ordered.

[10]   The Public Trust submits this assertion is based on a number of flawed assumptions, including: that the Family Court proceedings will be unsuccessful in recouping any assets for the benefit of the estate; that there were debts owing from the Rose Family Home Trust and the Rose Investment Trust to the deceased on his death when there were no such debts owing to the deceased as far as counsel is aware; and it is difficult to understand how debts to the deceased owed by the trustees of the Rose Investment Trust or the Rose Family Home Trust could be prejudicial to the children of the deceased.

[11]   On the information before me I am in no position to resolve these issues, but I accept the Public Trust’s submission that there is insufficient evidence of prejudice to the deceased’s children at this point for it to be relevant to costs on this application.

[12]   The starting point is that costs may be properly paid out of the estate if the litigation “originates from those interested in the residue of the estate”.3 Further, if

2      Initially it sought costs against Mrs Rose personally, but did not pursue this once it received confirmation that the sum of $6,985.11 available to Mrs Rose in the deceased’s bank account had been exhausted by payment of his funeral expenses.

3      David Bullock and Tim Mullins The Law of Costs in New Zealand (Lexis Nexis, Wellington, 2022) at [4.13].

the executor or administrator of the estate is acting reasonably for the benefit of the estate, then their costs will generally be met.4 In Public Trust v Lawrence,5 the Court made an order appointing the Public Trust as executor, and the Public Trust’s costs were borne by the estate, “as is the usual case”.6

[13]   In this case, as costs are no longer being sought against Mrs Rose personally, I consider it appropriate that the Public Trust’s costs should be met by the estate. The application was properly brought to enable the  deceased’s  children  to  bring  Family Court proceedings challenging Mrs Rose’s retention of substantial property alleged to form part of the deceased’s estate. There  is  no  suggestion  that  the Public Trust has acted unreasonably and the application was not opposed. In these circumstances, I consider it appropriate to order that the costs of the application be met by the estate in accordance with the calculation of 2B costs and disbursements provided by the applicant, being $8,804.

[14]   In accordance with the usual approach to costs, I do not consider that the current inability of the estate to pay costs is a reason to decline an order (noting that the value of the assets in the estate is contested in the Family Court proceedings).

[15]I therefore order that the applicant’s costs of $8,804 are to be paid by the estate.

La Hood J

Solicitors:

J B Morrison, Wellington for Applicant

Cullinane Steele Ltd, Levin for Respondent

4      David Bullock and Tim Mullins, above n 3; and Shrimpton v Freeman [2021] NZHC 865 at [4].

5      Public Trust v Lawrence [2022] NZHC 558.

6 At [122].