Shine v Green - [2018] NZHC 2869

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-407-000184

[2018] NZHC 2869

BETWEEN
NICOLA MEGAN SHINE as executor of the estate of Ms Jane Fox

Plaintiff

AND

JENNIFER LILLIAN GREEN and MEGAN

FRANCES SHINE as the executors of the estate of Sylvia Lily Fox

First Defendants

DIANA ELIZABETH FOX and WILLIAM

HUGH JONES as executors of the estate of Graham Glyn Fox

Second Defendants

SHANE GOODALL McLAUGHLIN

Third Defendant

Hearing: (On the papers)

Counsel:

Tim Conder for the Plaintiff

First Defendants abiding the decision of the Court Second Defendants abiding the decision of the Court David O’Neill for the Third Defendant

Judgment:

6 November 2018

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 6 November 2018 at 1:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

SHINE v GREEN & ORS [2018] NZHC 2869 [6 November 2018]

Introduction

[1] On 12 June 2018 I issued a decision on an application brought under s 66 of the Trustee Act 1956, providing the executor of the estate of Paula Fox with directions as to the proper distribution of the residue of Ms Fox’s estate.1 I made the following directions:2

(a)Jordan, Ms Fox’s son, held an absolutely vested interest in the residue under Ms Fox's will, by virtue of the absolute gift made by Ms Fox in her will.

(b)Alternatively, if he did not obtain an absolutely vested interest in the residue under the will, under Part 3 of the Administration Act 1969 the residue was held for him on statutory trust following Ms Fox's death, and he held an absolutely vested interest in the residue held on statutory trust.

(c)Accordingly, at his death the residue of Ms Fox's estate was part of his estate and fell to be distributed as such.

[2] Ms Shine, the plaintiff and executor of Ms Fox’s estate, now seeks for her costs of $19,408.43 to be met by the estate on an indemnity basis. This is opposed by Mr McLaughlin, the third defendant, who submits Ms Shine should pay her own costs and those of Mr McLaughlin personally.

Costs principles

[3] Section 71 of the Trustee Act provides for the court’s power to order costs following an application for an order under the Act, including s 66:

“71 Power of Court to charge costs on trust estate

The Court may order the costs and expenses of and incidental to any application for any order under this Act, or of and incidental to any such order, or any conveyance or assignment in pursuance thereof, to be raised and paid out of the property in respect whereof the same is

1 Shine v Green [2018] NZHC 1382, (2018) 4 NZTR 28-010.
2 At [72]-[74].

made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the Court may seem just.”

[4]The learned authors of Garrow…

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 Shine v Green

Details

AGLC: Shine v Green [2018] NZHC 2869
Case: [2018] NZHC 2869
Decision Date: 6 November 2018

CaseChat Overview and Summary

Nicola Megan Shine, as executor of the estate of Ms Jane Fox, brought an application against Jennifer Lillian Green, Megan Frances Shine, Diana Elizabeth Fox, William Hugh Jones, and Shane Goodall McLaughlin concerning the proper distribution of the residue of Ms Fox's estate. The court was tasked with deciding whether Ms Shine, as executor, was entitled to have her costs of $19,408.43 met by the estate on an indemnity basis, or whether she should pay her own costs and those of Mr McLaughlin personally. This decision hinged on the nature of the application under the Trustee Act 1956 and the principles governing costs in such proceedings.

The court considered whether the application fit within the first category of proceedings as described by Kekewich J in Re Buckton, which involves trustees seeking guidance on the construction of the trust deed or administration. Both parties agreed that the litigation fell within this category. However, the court had to determine whether the application was "friendly" or "hostile" as per Lightman J's categorisation in Alsop Wilkinson (a firm) v Neary. Ms Shine argued that her oppositional stance was necessary to expedite matters and represent the known position of a party with an opposing interest. In contrast, Mr McLaughlin contended that Ms Shine's stance was hostile and not reasonably justified, and therefore, she should not be entitled to indemnity.

The court found that Ms Shine's oppositional stance was reasonably taken to expedite matters and represent the known position of Ms Fox's mother, who intended to dispute the meaning of the will. Although the legal arguments were ultimately unsuccessful, they were not without merit and involved complex questions of law. The court accepted that Ms Shine acted responsibly and in the best interests of the estate, thereby justifying her oppositional stance.

The court ruled that Ms Shine, as a reasonable trustee, was entitled to indemnity for her costs incurred in the proceeding. These costs, amounting to $19,400.43, would be paid out of the estate. The court's decision was based on the principle that a trustee or executor can incur costs in proceedings that genuinely seek guidance on the trust's construction or administration, even if they adopt an oppositional stance in good faith and with reasonable justification.

Orders