Rushton v Guthrie - [2024] NZHC 695

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-066

[2024] NZHC 695

UNDER the Trusts Act 2019 and Property Law Act 2007

IN THE MATTER

of the Estate of Beverley Ann Rushton

BETWEEN

KERRY MARIA RUSHTON

Plaintiff/First Counterclaim Defendant

AND

JENNIFER ANNE GUTHRIE and CHRISTOPHER WILLIAM RUSHTON

Defendants/Counterclaimants

JONATHAN ANDREW BROWN

Second Counterclaim Defendant

Hearing: (On the papers)

Counsel:

G A Paine for Plaintiff/First Counterclaim Defendant R M Reeve for Defendants/Counterclaimants

J Riddle for Second Counterclaim Defendant

Judgment:

9 April 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(Costs)

This judgment was delivered by me on 9 April 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RUSHTON v GUTHRIE [2024] NZHC 695 [9 April 2024]

[1] This judgment concerns a claim by the defendants, who are the executors and trustees of the estate of Beverley Rushton, for costs against the plaintiff, Kerry Rushton (Ms Rushton), and the second counterclaim defendant, Jonathan Brown (Mr Brown). Ms Rushton is the daughter of Beverley Rushton, the mother of the defendant Christopher Rushton and the sister of Mr Brown.

[2] The course of the proceeding has not been straightforward and has taken place against the background of other litigation between the parties arising from the administration of the estate of Beverley Rushton. The background facts are set out in more detail in my earlier judgment of 26 October 2023.1

[3] Ms Rushton commenced this proceeding seeking orders for the defendants’ removal as executors and trustees of the estate of Beverley Rushton and their replacement with a corporate trustee. Ms Rushton also sought reimbursement of expenses that she says she incurred for her work on behalf of the estate.

[4] Mr Brown was joined to the proceeding by the defendants. They filed a statement of defence to Ms Rushton’s claims and also counterclaims against Ms Rushton and Mr Brown. In their counterclaims the defendants sought an apportionment between the parties of any liability found to be owed to Ms Rushton and an order for the sale of a property owned jointly by the three parties at Forbury Road, Dunedin under s 339 of the Property Law Act 2007.

[5] The Forbury Road property was owned as to a one-half share by Mr Brown and a one-quarter share each by Ms Rushton and the defendants. Relevantly for present purposes, as the result of settlement of earlier litigation involving the parties, Ms Rushton and Mr Brown had an option to purchase the estate’s interest in the property in these terms:

Either Jonathan or Kerry will purchase one quarter-share of Forbury Road from the Deceased’s estate at a value of $143,500, with Kerry being granted first option to purchase same from the Deceased’s estate.

1 Rushton v Guthrie [2023] NZHC 2983.

[6] The defendants also made an application seeking summary judgment and/or strike out of Ms Rushton’s claims and summary judgment on their counterclaim for an order for sale of the Forbury…

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 Rushton v Guthrie

Details

AGLC: Rushton v Guthrie [2024] NZHC 695
Case: [2024] NZHC 695
Decision Date: 9 April 2024

CaseChat Overview and Summary

This case concerns a claim by the defendants, Jennifer Anne Guthrie and Christopher William Rushton, who are executors and trustees of the estate of Beverley Ann Rushton, for costs against the plaintiff, Kerry Maria Rushton, and the second counterclaim defendant, Jonathan Andrew Brown. Kerry Rushton is the daughter of Beverley Rushton, the mother of Christopher Rushton, and the sister of Jonathan Brown. The litigation has arisen from the administration of the estate of Beverley Rushton. In a previous judgment, the Court struck out Kerry Rushton's claims and ordered the sale of a jointly owned property at Forbury Road, Dunedin. The defendants now seek costs against both Kerry Rushton and Jonathan Brown.

The legal issues before the Court were whether the defendants were entitled to costs against Kerry Rushton and Jonathan Brown and, if so, the appropriate amount and basis of those costs. The Court considered the principles governing costs in the High Court, including the discretionary nature of costs awards, the predictability and expeditiousness of cost determinations, and the general rule that the losing party pays the winning party's costs. The Court also considered the specific circumstances of Jonathan Brown, who had taken no active steps in the proceeding.

In its judgment, the Court found that the defendants were entitled to costs against both Kerry Rushton and Jonathan Brown. The Court awarded costs against Kerry Rushton on a category 2 band B basis with an uplift of 30 per cent, reflecting her failure to comply with the rules and directions of the Court, the meritless nature of her claims, and her unfounded allegations against the defendants. The Court awarded costs against Jonathan Brown of 60 per cent of the defendants' scale 2 band B costs, reflecting his necessary involvement in the defendants' successful counterclaim for the sale of the Forbury Road property. The Court declined to award increased costs against Jonathan Brown for steps taken in relation to Kerry Rushton's claims against the defendants or for the defendants' costs in opposing those claims.

The Court's final orders were that the defendants were awarded costs against Kerry Rushton in the amount of $54,683.20 plus disbursements of $1,555.98, and costs against Jonathan Brown in the amount of $22,370.40 plus disbursements of $1,555.98. The liability of Kerry Rushton and Jonathan Brown for costs and disbursements was joint and several but only to the extent that Jonathan Brown shall not be required to contribute in amounts greater than the awards stated.

Orders