Roberts v Francis - [2013] NZHC 2144

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 defendant

Judgment:

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…

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 Roberts v Francis

Details

AGLC: Roberts v Francis [2013] NZHC 2144
Case: [2013] NZHC 2144
Decision Date: 22 August 2013

CaseChat Overview and Summary

The case of Roberts v Francis concerns the administration of Dr Bryan Mark Roberts’ estate. The deceased left no will and was survived by his second wife, Ms Muriel Singleton Francis, and two adult children, Ms Catherine Roberts and Mr Michael Roberts. Ms Francis was granted letters of administration of the estate and elected to receive the statutory legacy, with the residue to be divided equally between her and the plaintiffs. The plaintiffs brought this proceeding seeking orders relating to the provision of information about the estate and costs. The primary issue was whether Ms Francis should be required to meet the plaintiffs' costs from her own means and whether she should be entitled to indemnity from the estate in respect of her own costs.

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