Shrimpton v Freeman - [2021] NZHC 865

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1302

[2021] NZHC 865

BETWEEN JEFFREY MARK SHRIMPTON AND ERNEST RAYMOND SHRIMPTON
Plaintiffs

AND

APRIL LORRAINE FREEMAN

First Defendant

ANGELA JOY FREEMAN
Second Defendant

ROBERT EDWARD SADGROVE

Third Defendant

Hearing: On the papers

Counsel:

R O Parmenter for Plaintiffs S A Keall for First Defendant Second Defendant in person

R V Sami for Third Defendant

Judgment:

23 April 2021

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 23 April 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Daniel Overton & Goulding, Onehunga
Murdoch Price Limited, Auckland

SHRIMPTON v FREEMAN [2021] NZHC 865 [23 April 2021]

[1] The second and third defendants withdrew their opposition to the grant of probate in solemn form, which was granted by me on 11 March 2021. I must now address the issue of costs.

[2] The submissions of counsel are somewhat prolix, but I think can be reduced to the following core propositions:

(a)The plaintiffs claim that they should have costs out of the estate, given that they have incurred those costs for the benefit of the estate.

(b)The first defendant claims costs against the second and third defendants on an indemnity basis per r 14.6(4)(a) of the High Court Rules 2016 because:

(i)the second and third defendants never made any serious attempt to substantiate their opposition;

(ii)they have not acted reasonably in terms of settlement discussions; and

(iii)they have otherwise acted reasonably.

(c)The first defendant also seeks costs pursuant to rr 14.6(4)(c) or (f) in respect of the temporary administrator against the first and second defendants.

(d)The second defendant refers to:

(i)alleged abuse by the first defendant of the deceased;

(ii)information suggesting to her that the deceased was in an extremely vulnerable state and affected by drugs at about the time she made amendments to her will;

(iii)the second defendant’s unfamiliarity with the probate process and, therefore, joined with the third defendant to engage counsel to save costs;

(iv)several attempts the second defendant made to come to a reasonable agreement without having to go to Court;

(v)there being no other option but to register their concerns with the Court against the backdrop of ongoing acrimony between them and the first defendant; and

(vi)they endeavoured to provide prompt responses to requests from the executors’ lawyers.

(e)The third defendant, through counsel, submits:

(i)they had serious and genuine concerns about their mother’s wellbeing and sought all relevant information from the executors;

(ii)they had no option but to file their defences or what they thought were genuine grounds, while they awaited discovery of all relevant evidence;

(iii)they had not unreasonably blocked the executors’ attempt to administer the estate;

(iv)compromise was reached not to go to trial based on the overall circumstances;

(v)the third defendant may have pursued concerns about the reasonableness of the plaintiffs’ costs via the Law Society’s complaints process;

(vi)as the merits are not…

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 Shrimpton v Freeman

Details

AGLC: Shrimpton v Freeman [2021] NZHC 865
Case: [2021] NZHC 865
Decision Date: 23 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Shrimpton v Freeman was adjudicated, involving a dispute over the administration of an estate. The plaintiffs, Jeffrey Mark Shrimpton and Ernest Raymond Shrimpton, sought costs from the defendants, April Lorraine Freeman, Angela Joy Freeman, and Robert Edward Sadgrove, in relation to the grant of probate. The second and third defendants had previously withdrawn their opposition to the grant of probate. The court was tasked with determining the issue of costs in the proceedings.

The primary legal issues that the court had to address included whether the plaintiffs were entitled to costs out of the estate, whether the first defendant was entitled to indemnity costs against the second and third defendants, and whether the first defendant was entitled to costs for the temporary administrator's fees. The court considered various submissions from the parties, including the plaintiffs' claim for costs out of the estate, the first defendant's claim for indemnity costs against the second and third defendants, and the third defendant's submission regarding costs incurred by the temporary administrator.

The court found that the plaintiffs were entitled to their reasonable costs out of the estate as they had acted for the benefit of the estate. The first defendant was also entitled to her costs against the second and third defendants on a 2B basis, to be fixed by the Registrar. However, the court was not satisfied that the second and third defendants had acted unreasonably enough to warrant indemnity costs under the relevant rules. The court dismissed the first defendant's claim for the temporary administrator's costs, stating that the temporary administrator was not a party to the proceedings and had not acted in the proceedings.

The outcome of the case was that the plaintiffs were entitled to their reasonable costs out of the estate, and the first defendant was entitled to her 2B costs against the second and third defendants, with the quantum to be fixed by the Registrar if not agreed. The court did not grant the first defendant's claim for the costs of the temporary administrator.

Orders