IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-6889 [2013] NZHC 2144
IN THE ESTATE OF BRYAN MARK ROBERTS BETWEEN
CATHERINE ANN ROBERTS and MICHAEL CHARLES ROBERTS Plaintiff
AND
MURIEL SINGLETON FRANCIS Defendant
Hearing: 22 August 2013 Appearances:
E Scorgie for plaintiff
H Fulton for defendantJudgment:
22 August 2013
(ORAL) JUDGMENT OF LANG J [on costs]
ROBERTS v FRANCIS [2013] NZHC 2144 [22 August 2013]
[1] Bryan Mark Roberts died in Auckland on 25 September 2010, aged 82 years. He died intestate, in that he had no will. Dr Roberts was survived by his second wife, Ms Francis, and by two adult children from his first marriage, Ms Catherine Roberts and Mr Michael Roberts (“the plaintiffs”). Both of the plaintiffs now reside in England.
[2] On 5 December 2011, Ms Francis obtained a grant of letters of administration in respect of Dr Roberts’ estate. With the assistance of her solicitors, she then set about realising the assets of the estate. She also elected to receive the statutory legacy of $155,000,1 together with interest on that sum between the date of Dr Roberts’ death and the date of ultimate distribution. In accordance with the statutory regime, the residue of Dr Roberts’ estate is to be divided equally between Ms Francis and the plaintiffs.
[3] Issues have arisen regarding the provision of information about the estate to the plaintiffs. They contend that they have had to prise information out of Ms Francis, and that she has been extremely tardy in providing information to which they were lawfully entitled. They say this state of affairs continued through to May
2013. At that point they were left with no choice but to apply to this Court for an order requiring Ms Francis to file an inventory and account of the assets of the estate.2 They duly filed that application on 7 June 2013. The proceeding was served on Ms Francis on or about 13 June 2013.
[4] Over the next month or so Ms Francis, through her solicitors, provided the plaintiffs with the balance of the information they sought. In addition, Ms Francis filed a formal affidavit setting out an inventory of the estate’s assets and liabilities on
26 July 2013. As a result, the plaintiffs are now satisfied that it is no longer necessary for them to continue with their application. It is now only necessary to
resolve outstanding issues relating to costs.
1 Administration Act 1969, s 77.
2 High Court Rules, r 27(32).
Issues
[5] Two issues arise in this context. First, the plaintiffs seek an order requiring Ms Francis to meet their costs from her own means. They argue that Ms Francis should not be entitled to indemnity from the estate in respect of these costs, because that would effectively require the plaintiffs to meet two-thirds of any award of costs that might be made. In addition, the plaintiffs argue that Ms Francis should be required to pay indemnity costs, or increased costs, because of the manner in…
Continue reading Roberts v Francis
Sign in free to access the full text
- AGLC
- Roberts v Francis [2013] NZHC 2144
- Case
- [2013] NZHC 2144
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiffs were entitled to an award of costs because they achieved their objective of obtaining the information they sought. The court rejected the plaintiffs' argument for an award of indemnity costs, finding that Ms Francis' actions did not warrant such an award. Instead, the court awarded costs on a Category 2B basis together with disbursements as fixed by the Registrar. The court also ruled that Ms Francis should meet the award of costs personally and not from the estate assets, following the approach taken in Brownlee v McCaslin. However, the court held that Ms Francis should not be required to meet the costs of preparing and filing the affidavit from her own resources, as the evidence provided was not substantially helpful to the court.
In summary, the court awarded the plaintiffs costs on a Category 2B basis together with disbursements as fixed by the Registrar, to be met by Ms Francis personally. Ms Francis was not entitled to indemnity from the estate for her own costs, except for the costs of preparing and filing the affidavit, which she was required to meet from her own resources.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.