Slade v Chilcott

[2017] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-001103 [2017] NZHC 400

BETWEEN

STEPHEN TERRY SLADE

Applicant

AND

RICHARD EDWARD CHILCOTT Respondent

Hearing:	13 February 2017
Appearances:	J Moss for the Applicant A J F Wilding for the Respondent
Judgment:	9 March 2017

JUDGMENT OF NATION J

[1]      On 8 November 2016, Mr Slade filed an originating application in the High

Court for orders under the Protection of Personal and Property Rights Act 1988.  On

8 December 2016, Mr Maciaszek, as solicitor for Mr Chilcott, filed an appearance under protest to jurisdiction asserting that the proceedings involved an issue over an enduring power of attorney and should be dealt with in the Family Court.

[2]      Counsel for Mr Slade and Mr Chilcott filed a joint memorandum with the High Court on 9 September 2016, asking for an adjournment of the proceedings but advising the Court that Mr Maciaszek was being appointed as the holder of an enduring power of attorney for Mr Chilcott and the applicant was still considering the issue of whether or not the proceedings should be dealt with in the Family Court.

[3]      The  proceedings  were  called  before  me  on  13  February  2017.    In  the meantime, the issues which had caused Mr Slade to issue the proceedings had been resolved but, through a memorandum of his counsel, he sought an order for his and

counsel’s reasonable costs in issuing the proceedings.

SLADE v CHILCOTT [2017] NZHC 400 [9 March 2017]

[4]      Mr  Wilding,  for  Mr  Chilcott,  filed  a  memorandum  arguing  that  the proceedings should never have been filed in the High Court and opposing any order for costs.

[5]      At the hearing before me, both counsel accepted there was no need for the proceedings to continue.  Mr Moss, for Mr Slade, agreed it would be appropriate to file a notice of discontinuance on the basis this would be without prejudice to costs issues. A notice of discontinuance was filed on 13 February 2017.

[6]      Mr Slade filed his originating application because of uncertainty as to how he should deal with his obligations pursuant to an enduring power of attorney for Mr Chilcott.  Mr and Mrs Chilcott had granted him enduring powers of attorney on 7

June 2012.  Later that year, they moved to Germany leaving their home at Lincoln under the control of Mr Slade.   In April 2013, Mr Slade was advised that Mrs Chilcott had died and Mr Chilcott had become mentally ill and was living in a retirement home.

[7]      Mr Slade corresponded with a Mr Mueller in Germany who appeared to be taking some responsibility for Mr Chilcott’s affairs.  In September 2013, Mr Slade was advised that Mr Mueller had been appointed as guardian for Mr Chilcott in Germany.  By letter of 28 May 2014, attorneys in Germany advised Mr Slade that they were acting for Mr Mueller as custodian for Mr Chilcott “with regard to his and his late wife’s estate in New Zealand”.   They advised that Mr Mueller had been appointed  “as  custodian  by the  local  Court  of Wiesbaden”.    In  the  letter,  they confirmed that Mr Chilcott was very ill and, due his illness, would not be able to handle any business matters without the help of his custodian.

[8]      In a letter of 8 August 2014, the Wiesbaden attorneys wrote to Mr Slade suggesting  he  might  be  able  to  assist  in  selling  the  Chilcotts  property  in  New Zealand.  There was correspondence between Mr Slade and the Wiesbaden lawyers in 2015.   In a letter of 18 August 2015, Mr Slade was advised by the German attorneys that Mr Chilcott still had capacity but was very ill.   There was some correspondence  over  Mr  Chilcott’s  financial  affairs  and  then  correspondence between Mr Slade and a new attorney at the same German law firm in September

2016.   It appears this attorney was becoming frustrated at delays in receiving information from an accountant in New Zealand.

[9]      In a letter of 13 July 2016, a Christchurch firm of solicitors, Geddes and Maciaszek, wrote to Mr Slade advising they had been instructed to act in the affairs of Mr Chilcott by the German attorney, the German attorney receiving instructions both from Mr Chilcott and Mr Chilcott’s “attorney” Mr Mueller.   Geddes and Maciaszek attached an authority signed by Mr Chilcott authorising Mr Slade to deal with Geddes and Maciaszek.   They requested a meeting to discuss Mr Chilcott’s financial situation.  Mr Slade responded with a letter of 15 July 2016 providing some general information for Mr Chilcott but stating that he had enduring powers of attorney for personal care and welfare and property for Mr Chilcott and he was happy to work with the German attorney and Mr Mueller but there were “jurisdictional issues” and he had decided to apply to the Court for directions to deal with Mr Chilcott’s assets in New Zealand.

[10]     In his memorandum of 10 February 2017, Mr Moss, counsel for Mr Slade, advised that, by letter dated 21 December 2016, Mr Maciaszek gave notice that Mr Chilcott had revoked the enduring power of attorney in respect of property held by Mr Slade and appointed Mr Maciaszek in his place.  With the letter were copies of the revocation, the new appointment and supporting documents as to the capacity of Mr Chilcott to execute those documents.   Mr Moss confirmed that Mr Slade had accepted the revocation and the appointment of Mr Maciaszek.  Counsel confirmed that Mr Slade and Mr Maciaszek met on 3 February 2017.  Mr Slade had agreed to hand over files and, on receiving the required authorisation, would transfer approximately $500,000 which was held in his trust account.

[11]     Mr Moss said the filing of the proceedings in the High Court had achieved its purpose, clarified how Mr Maciaszek was authorised to act as solicitor now for Mr Chilcott and, through a valid revocation of the enduring power of attorney to Mr Slade, released Mr Slade from his obligations as an attorney.

[12]     I was told that Mr Moss’ costs, as per an account made available to me, were

$4,851.25, including a filing fee of $740 for the originating application. This was for

his attendances from 15 July 2016 until 10 November 2016.  Those costs had been paid by Mr Slade.   I do not know whether those costs were then invoiced to Mr Chilcott and paid from funds which Mr Slade held in his trust account for Mr Chilcott but I infer they could have been.  I do not know what, if any, costs Mr Slade has billed to Mr Chilcott for his work and time in relation to the proceedings.  Mr Moss said he had unbilled time of approximately $2,000 for work done since 1

December 2016.   I was told the total costs associated with the proceedings were around $9,000.

[13]     In his memorandum, Mr Moss asked the Court to approve payment to Mr Slade for his reasonable costs and those of counsel in issuing the proceedings and for attendances up to the conference on 13 February 2017.  He also asked for the Court’s approval of his recovering costs for further attendances that might be required of him in providing information and dealing with Mr Chilcott’s estate, including responding to requests for information from Mr Maciaszek.

[14]     Mr  Moss  said  the  proceedings  had  been  filed  in  a  supervisory  capacity because of difficulties and associated uncertainties relating to Mr Slade’s obligations and responsibilities pursuant to an enduring power of attorney.

[15]     Mr Wilding appeared as counsel for Mr Chilcott on instructions from Mr Maciaszek.  For reasons detailed in his memorandum, he said the proceedings under the Protection of Personal and Property Rights Act, in relation to powers of attorney, should have been brought in the Family Court.  He suggested the proceedings were unnecessary and Mr Slade should have met with Mr Maciaszek after receiving a letter from the latter dated 15 July 2016.   He said the costs incurred seemed extraordinarily high and could have been much less if the proceedings had been started in the Family Court.  He did not seek costs for Mr Chilcott with regard to the protest to jurisdiction defence that had been filed but suggested costs should be left to lie where they are for the parties to consider.

[16]     In all the circumstances, I am not going to make any order as to costs for the benefit of either party to these proceedings but do that on the basis that Mr Slade may have or will be billing Mr Chilcott for his professional services in acting as Mr

Chilcott’s attorney and in looking after his affairs in New Zealand, and for expenses

he has incurred in instructing counsel in that regard.

[17] With Mr Maciaszek now duly appointed as Mr Chilcott’s attorney in New Zealand, he is in a position to consider whether any such costs are appropriate. If there is any dispute, it can be dealt with by the New Zealand Law Society under the Lawyers and Conveyancers Act 2006.

[18]     I do make these observations:

(a)  The information which Mr Slade received from lawyers in Germany, acting on the instructions of Mr Mueller, did create uncertainty as to whether Mr Chilcott had capacity at relevant times.  Mr Hund von Hagen advised, in a letter of 28 May 2014, that he had been asked to assist Mr Mueller, who had been appointed as custodian for Mr Chilcott by a Court in Wiesbaden.  The letter said that Mr Chilcott was very ill and would not be able to handle any business matters without the help of his custodian.    An  email  of  Mr  Hund  von  Hagen  to  Mr  Slade  of  17

December  2014  said  that  it  was  then  very  difficult  to  discuss  any practical steps with Mr Chilcott.  In an email of 15 July 2015, Mr Hund von  Hagen  said  Mr  Chilcott  was  still  suffering  from  depressive conditions.  In a detailed email of 22 August 2015, Mr Hund von Hagen said Mr Chilcott was still “rather inactive due to his depression” but that the appointment of Mr Mueller as his custodian did not necessarily mean that he lacked capacity.  In an email of 23 January 2016, a colleague of Mr  Hund  von  Hagen  said  Mr  Chilcott  was  still  suffering  from depression.

(b)  During 2015, the German lawyers were asking for information from Mr Slade.   Not all their queries were answered but Mr Slade said he was chasing up Mr Chilcott’s accountant for updated accounts.

(c)  By letter of 13 July 2016, Geddes and Maciaszek wrong to Mr Slade advising he had instructions from the German lawyer to act in respect of

the affairs of Mr Chilcott.   The letter said the German lawyer had instructions from both Mr Chilcott and “Mr Chilcott’s attorney” Mr Mueller.  With the letter was an undated instruction from Mr Chilcott to Mr Slade to promptly and fully cooperate with Mr Maciaszek in the enquiries that Mr Maciaszek was to make of Mr Slade.  The instruction was  from  Mr  Chilcott  “on  the  authority  of  Bernhard  Mueller,  the guardian appointed by the Court”.  There was no indication in that letter that the enduring power of attorney for Mr Slade was to be revoked.  The wording of the authority did suggest that Mr Chilcott might still lack capacity.   At  that  point,  Mr  Slade  could  have  assumed  he  was  still required to act as Mr Chilcott’s attorney.  Geddes and Maciaszek’s letter did request a meeting between Mr Peter Maciaszek and Mr Slade promptly for Mr Maciaszek to be given information as to Mr Chilcott’s affairs and, in particular, his property.

(d)  Mr Slade’s response in his letter of 15 July 2016 was to provide some basic information, suggest that a meeting was premature and to advise that, on the advice of counsel, he was applying to the Court for directions in order to deal with Mr Chilcott’s assets in New Zealand and how he should be working with the German lawyer and the Mr Mueller as the custodian appointed by the Court.

(e)  There then followed the filing of proceedings in the High Court and the ultimate clarification of the situation for Mr Slade through the revocation of the enduring power of attorney as to property for him and the appointment of Mr Maciaszek in his place.

(f)   With the issues, from a practical sense, having been resolved, I have not decided whether the High Court had no jurisdiction to deal with the proceedings.  Although the filing fee for proceedings in the High Court may be higher than in the Family Court, there can be advantages to having proceedings in the High Court, particularly with regard to case management conferences that can assist in achieving an early resolution

of the issues that have to be dealt with.  That may have been a benefit that did result from the proceedings having been filed in this Court.

Solicitors:

Cashmere Law, Christchurch

AJF Wilding, Clarendon Chambers, Christchurch.