Thurston v Thurston
[2014] NZHC 2267
•18 September 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-7833 [2014] NZHC 2267
IN THE MATTER of the Estate of GRAEME NIGEL
THURSTON
UNDER
Part 18 of the High Court Rules and the
Family Protection Act 1955BETWEEN
LYALL GRAEME THURSTON, SIMON GRAEME THURSTON, OLIVER JOHN THURSTON and CHRISTIAN JAMES THURSTON
Plaintiffs
AND
COLLEEN ELIZA THURSTON, BRIDGET GORINSKI and JOHN STEPHEN BURRETT as executors of the Estate of GRAEME NIGEL THURSTON Defendants
Hearing: 12 - 16 May 2014 Appearances:
VT Bruton and DM Urmson for Lyall Thurston as plaintiff in the Family Protection proceeding and for Lyall Thurston and the grandchildren as parties served in the Property (Relationships) Act proceeding
WM Patterson for the grandchildren as plaintiffs in the Family
Protection proceeding
P McKendrick for the executors and trustees in the Family
Protection proceedingAH Waalkens QC and VJ Knell for Colleen Thurston as cross- claimant in the Family Protection proceeding and as applicant in the Property (Relationships) Act proceeding
Judgment:
18 September 2014
JUDGMENT OF TOOGOOD J
THURSTON v THURSTON [2014] NZHC 2267 [18 September 2014]
CIV-2012-404-4529
IN THE MATTER of the Property (Relationships) Act 1976
BETWEEN COLLEEN ELIZA THURSTON Applicant
ANDCOLLEEN ELIZA THURSTON, BRIDGET GORINSKI and JOHN STEPHEN BURRETT, in their capacity as executors of the Estate of GRAEME NIGEL THURSTON
Respondents
ANDLYALL GRAEME THURSTON, SIMON GRAEME THURSTON, OLIVER JOHN THURSTON and CHRISTIAN JAMES THURSTON
Parties Served
This judgment was delivered by me on 18 September 2014 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Table of Contents Paragraph
Number
Introduction [1]
Assets held by the family trust and in the estate [3]
Contracting out agreement dated 29 January 2002 [4]
The provisions made for the claimants under the TF Trust
and under Graeme’s will
[6]
The issues arising from the claims by the parties [8] Colleen’s challenges to the contracting out agreement [10] The FPA claims by Colleen, Lyall and the grandsons [13]
Graeme Thurston’s family [14]
Esther Muriel Thurston [15] Lyall Graeme Thurston [17] Colleen Eliza Thurston [20] Simon Graeme Thurston [24] Oliver John Thurston [25] Christian James Thurston [26]
The nature of the evidence [28] Colleen’s application to set aside the election of Option B [31] The contracting out agreement under s 21 PRA [35] The preparation of the contracting out agreement [36]
The allocation of separate property [39]
The arrangements to apply while Graeme and Colleen were living together as a couple
What was to happen under the agreement if Graeme and Colleen separated
[42]
[43]
What was to happen if Graeme died before Colleen [45]
Is the contracting out agreement void? [48]
Allegation that Colleen was not advised on the effect and implications of the agreement
[49]
Application of Coxhead v Coxhead principles [55]
If necessary, declaration giving effect to agreement would be made under s 21H of the PRA
[61]
Table of Contents Paragraph
Number
Would giving effect to the contracting out agreement cause serious injustice?
Allegations of an unfair disparity and misstatement of asset values
Claims for transfer of property settled on trust or compensation
[62] [64]
[68]
Legitimate purpose in contracting out of the PRA [69]
No order for transfer of trust property or compensation [72]
Summary of conclusions as to validity of contracting out agreement
[73]
Application to set aside Option B declined [75] Claims under the FPA – applicable legal principles [76] Principal matters to be considered regarding FPA claims [81]
Graeme’s September 2003 will [82]
Settlement of the Thurston Family Trust on 12 September
2003
[85]
The terms of the TF Trust deed [87]
A side issue – are the trustees obliged to maintain the
Sanctuary Cove property?
Evidence of Graeme’s intentions for the use of the TF Trust’s funds
The performance and management of the TF Trust during
Graeme’s lifetime
[89] [91]
[92]
Graeme’s last will dated 14 August 2009 [94]
What Colleen has received from the estate and under the
Trust Deed
[104]
The Sanctuary Cove property [105] What Lyall and the grandsons have received under the will [109] Criticism of the trustees of the TF Trust [112] The removal of Mr Goodwin and Colleen as trustees [118]
The respective financial needs of the claimants [120]
Discussion of the claims by the family members [121]
Table of Contents Paragraph
Number
Lyall’s claims [122] Simon’s claims [127] Oliver’s and Christian’s claims [129] Colleen’s claim [130]
The Sanctuary Cove property and other assets subject to mutual wills obligation
[133]
The testator's wishes [137]
Summary of findings [139] Claims under the PRA [139](a) Claims under the FPA [139](g)
The form of the orders to be made [140] Orders [143] Costs [146]
Introduction
[1] In 1926, Graeme Nigel Thurston began his life on a farm near Taihape. Leaving the farm in the early 1950s, he established and grew a highly successful business which had interests predominantly in timber and building. In 1983, the business was sold to New Zealand Forest Products Limited for a total sum of around
$17 million. Then aged 57, Graeme Thurston retired and spent the remainder of his life managing his assets and enjoying the fruits of his labours. In September 2003, Graeme established the Thurston Family Trust (“the TF Trust”) with investments valued at $5,281,913 and his substantial property in Ronaki Road, Mission Bay, which was then worth $5 million. He died on 28 September 2010, aged 84, leaving a will dated 14 August 2009.
[2] Graeme was survived by his widow Colleen, then aged 66, who was his second wife; his only child Lyall, then aged 60; and Lyall’s three adult sons. Colleen, Lyall, and the grandsons are beneficiaries under Graeme's last will and the TF Trust deed. In this proceeding, each of them is a claimant for further provision from the estate under the Family Protection Act 1955 ("the FPA"). Colleen seeks an order transferring the Ronaki Road property to her under the Property (Relationships) Act 1976 (“the PRA”).
Assets held by the family trust and in the estate
[3] The evidence establishes that Graeme Thurston was a careful manager of his assets. According to the TF Trust accountant’s statements of financial position dated
30 September 2010, the combined net value of the assets in the estate and the TF Trust at Graeme’s death was $16,654,342. The estate assets were valued at
$12,274,652, made up of cash, term deposits, shares, an advance in excess of $9 million to the TF Trust, and a holiday home in Sanctuary Cove, Queensland. The TF Trust’s assets comprised the Ronaki Road property, cash and investments worth
$4,379,690 net in total.
Contracting out agreement dated 29 January 2002
[4] On 29 January 2002, some 28 years after they began living together in a de facto relationship, Graeme and Colleen entered into a contracting out agreement under s 21 of the PRA. This was just three days before the commencement of provisions in the 2001 amendment to the PRA which extended the statutory regime for the division of relationship property to couples in de facto relationships. The agreement identified the separate property owned by each of the partners and made provision for Colleen out of Graeme’s separate property in the event of their separation or Graeme’s death.
[5] When Graeme died, Colleen elected Option B under s 61 of the PRA, choosing not to apply for a division of relationship property under the Act but to receive the property left to her under Graeme's will.
The provisions made for the claimants under the TF Trust and under Graeme’s
will
[6] From the total pool of assets, Graeme provided that the claimants would be entitled to receive the following:
(a) In the will, Colleen was left $2 million cash, the Sanctuary Cove property (subject to conditions), and Graeme’s personal chattels (now valued at approximately $500,000). Under the terms of the trust deed, a sum of $2.5 million was set aside for her in a sub-trust (the Group A fund) from which she receives the income; in the year ended
31 March 2013, she received $85,824 after tax from this source. Colleen’s total net income from the Group A fund, her personal trust and other investments, and national superannuation is approximately
$170,000 a year. The TF Trust owns the couple’s home at Ronaki Road (now worth more than $6 million) but Colleen is entitled to live there rent free, with the trustees responsible for its maintenance. However, it is clear from the trust deed and from a 2010 memorandum of wishes that it was not Graeme’s intention that Colleen should be able to live in the property for as long as she
wished. The trustees have the power to provide Colleen with a smaller property and release further cash into the general trust fund.
(b)Lyall is a discretionary beneficiary of the balance of the funds held in the TF Trust (the Group B or general fund). He received a legacy of
$200,000 under the will.
(c) Simon, who is seriously physically disabled, became entitled to a legacy of $100,000 when he turned 30.
(d) Oliver becomes entitled to a legacy of $75,000 when he turns 30.
(e) Christian becomes entitled to a legacy of $75,000 when he turns 30, and was left the Thurston Family Bible.
The three grandsons are beneficiaries of the Group B trust fund with their father. Since the TF Trust was established in 2003, however, Colleen is the only beneficiary to have received anything from it, having been paid $6,500 in the 2004 financial year.
[7] Each of the claimants now contests their entitlement to share in the estate and in the assets held on trust. Colleen is particularly concerned by the fact that she is not entitled to stay on indefinitely in the Ronaki Road property and she wants to own it outright. Lyall and the grandsons argue that inadequate provision has been made for them from a substantial estate.
The issues arising from the claims by the parties
[8] Colleen applies under the PRA to be permitted to revoke her election of Option B and to set aside the contracting out agreement Graeme and she entered into in 2002; Lyall and the grandsons apply under s 4 of the FPA by for further provision from Graeme’s estate; and Colleen cross-applies under the FPA.
[9] The principal question for the Court is whether the dispositions of property should be changed and, if so, how.
Colleen’s challenges to the contracting out agreement
[10] Colleen became entitled to apply to set aside her choice of Option B when Lyall and the grandsons applied for further provision under the FPA.1 At issue is her claim that it would be unjust to enforce her choice of option. First, she argues that the contracting out agreement is void because the requirements of s 21F of the PRA were not complied with. This argument is based on an allegation that, contrary to s 21F(5), the legal advice Colleen received as to the effect and implications of the agreement was so inadequate as to mean that she did not receive legal advice of the required standard.
[11] Second, and alternatively, Colleen argues under s 21J of the PRA that the agreement should be set aside because, in all the circumstances, giving effect to it will cause her serious injustice. The grounds for this claim are that the allocation of separate property in the agreement was unfairly disproportionate and, principally, that the terms of the agreement unfairly deprived her of the half share in the matrimonial home at Ronaki Road to which she would otherwise have become entitled on 1 February 2002. She says that, had the property not been allocated to Graeme as his separate property, it is highly likely that Graeme would have left his half share of the property to her absolutely in his will and she would have then been entitled to remain in her home for as long as she wishes.
[12] Colleen argues that the disposition of Graeme’s property to the TF Trust in
2003 should be set aside and the Ronaki Road property transferred to her under either s 44 or s 44C of the PRA on the ground that the settlement had the effect of defeating her proper claim to it. Alternatively, she seeks compensation.
The FPA claims by Colleen, Lyall and the grandsons
[13] Whatever the outcome of Colleen’s claims under the PRA, Lyall and the grandsons claim under s 4 of the FPA that Graeme failed in his duty to provide properly for their maintenance and support out of his $12 million estate. Colleen’s
cross-application under the FPA addresses whether Graeme’s will adequately
1 Property (Relationships) Act 1976, ss 69(1) and 69(2)(a)(iv).
provides for her proper maintenance and support in all the circumstances, including the disposition of property to the TF Trust.
Graeme Thurston’s family
[14] It is necessary to begin the discussion and determination of the issues by describing the relevant family relationships and history.
Esther Muriel Thurston
[15] Graeme married his first wife Esther in 1950. She was 11 years his elder. There is no evidence that Esther played a significant role in the establishment and growth of the family business, Thurston Holdings Limited, but it appears from the evidence that she was a dutiful wife and a loving mother to her only son Lyall who was born in the first year of the marriage. Esther was living in the matrimonial home in Wylie Street, Rotorua, at the time Graeme and she separated in 1974, and she remained living there until her death in July 2008. Although it had been purchased by Graeme only, the property was registered as a joint family home around the time of the separation. Esther did not receive any benefit from the sale of Thurston Holdings to NZFP in 1983.
[16] The marriage between Esther and Graeme was dissolved on 9 January 2002, but from the date of separation and until Esther’s death, Graeme paid Esther what he described as a tax-free allowance of $450 each fortnight and a further amount to cover the rates, insurance premiums, repairs and other outgoings on the Rotorua property. Esther never made a claim for the division of matrimonial property under the Matrimonial Property Act 1963 or under the PRA. On her death, the Rotorua property was transferred to Graeme by survivorship and he sold it.
Lyall Graeme Thurston
[17] After completing his secondary education in Rotorua, Lyall Thurston joined the family business in 1970, aged 20. He was employed as a timber cadet and worked his way up through the business in a relatively short time. In 1974, after a
period overseas, he was put in charge of one of the timber mills. Lyall was a shareholder and director of Thurston Holdings and at the time of the acquisition by NZFP in 1983 he was export manager for the business. He received $800,000 from the sale of his shares but remained employed in the business for a further three years.
[18] Lyall’s first son, Simon, was born in 1983 suffering from serious spina bifida and other disabilities which mean that he is paralysed from the waist down and has bowel and bladder dysfunction. Using the proceeds of the sale of their first home and some of the proceeds of the sale of his Thurston Holdings shares, Lyall and his wife Gabrielle purchased a single-storey home which was adapted for Simon’s use. It appears that Lyall and Gabrielle have devoted much of their lives since then, not only to caring for Simon, but also in making an extensive commitment to organisations concerned with disability and special education. Lyall has an impressive history of community service including an active participation in local body affairs in Rotorua since 1986. He was made a Companion of the Queen’s Service Order in 1998.
[19] Lyall and Gabrielle are the directors of a family business. Lyall’s gross income of $100,000 a year is derived from three appointments to governance roles in local authorities in the Lakes District and Bay of Plenty. The couple appear to live modestly.
Colleen Eliza Thurston
[20] Graeme Thurston met Colleen in 1970 when she was working as a hotel receptionist in Auckland. Graeme was then aged 44 years and Colleen 26 years, Colleen being only six years older than Lyall who was by then working in the family business. Colleen said Graeme and she began an intimate relationship in 1973 and started living together after Graeme separated from Esther in 1974. Graeme and Colleen enjoyed a stable and happy relationship for the next 36 years. Colleen did not need to work and she accepts she made no contribution to Graeme’s business. I have no doubt, however, that she provided valued companionship to Graeme and supported him in his business activities up to the time Thurston Holdings was sold.
[21] Graeme and Colleen initially lived in Taupo and then moved to Auckland when Thurston Holdings was sold. In about 1985-86, they purchased and then developed the property at Ronaki Road which became their home for the next 25 years and in which Colleen still lives. The development project included purchasing adjacent land, demolishing an existing dwelling, and constructing a garage complex including a self-contained flat. In 1987, Graeme purchased the substantial residential property at Sanctuary Cove, Queensland, where the couple holidayed for several months each year.
[22] In 2005, aged 79, Graeme suffered a severe stroke; he did not enjoy good health during the rest of his lifetime. It is not disputed that Colleen continued to provide full physical and emotional support for Graeme thereafter, and it appears that she became more engaged in the couple’s financial affairs, particularly after 2008 when Graeme was taken ill on a trip to Vienna. Although Graeme maintained control over his assets and was able to continue to make informed decisions about his financial affairs, his health continued to fail and in September 2010, after a major operation, he died.
[23] Colleen has continued to live in the Ronaki Road home rent free; the TF Trust pays the outgoings on the property which were estimated by Mr Burrett at around
$80,000 per annum. The Sanctuary Cove property was transferred to Colleen under the terms of Graeme’s will but she meets the outgoings which she estimates to be approximately $40,000-$50,000 a year.
Simon Graeme Thurston
[24] Simon Thurston is now 31 years old. Notwithstanding his significant physical disability and his need to use a wheelchair for mobility, he lives independently with the assistance of his parents and a cleaner. In 2006 he graduated with a Bachelor of Arts from Victoria University of Wellington with a triple major in politics, English literature and media studies, and he is part of the way through a law degree. Simon is employed as a policy planner at the Rotorua District Council earning approximately $61,000 a year before tax, which is just sufficient to cover his
rent and expenses. He has few assets and debt of around $8,000. Simon has managed to pay off his student loan.
Oliver John Thurston
[25] Oliver Thurston is 28 years old. He graduated from Victoria University of Wellington in 2009 with a Bachelor of Arts (double major in politics and classics) and a Bachelor of Commerce, majoring in commercial law. He is currently employed as Private Secretary for the Minister of Defence on a salary of approximately $62,000 per year, which just covers his rent and outgoings. He has a student loan of $26,000 and personal belongings.
Christian James Thurston
[26] Christian Thurston is the youngest of Lyall and Gabrielle’s sons, now aged 23. Like his brothers, he is a successful student having completed a Bachelor of Music from Victoria University of Wellington, majoring in classical performance and he is currently undertaking post-graduate studies. He lives in a flat in Wellington and supports himself by undertaking casual work and drawing on a student loan which is currently around $35,000. Christian is a promising opera
singer2 and has the prospect of continuing further training at the renowned Juilliard
School in New York, or elsewhere overseas, once he completes his post-graduate degree in Wellington. A potential barrier to continuing his professional development will be the cost of training and accommodating himself overseas.
[27] The Thurston grandsons had good relationships with their grandfather, even though they lived in different parts of the country. There is evidence that they saw less of Graeme after his stroke, because he travelled less, but they stayed in contact
with him and I have no doubt he would have been proud of their achievements.
2 I take judicial notice that, on 26 July 2014, Christian was placed third out of six finalists in the
Lexus Song Quest, the premier competition for young New Zealand opera singers.
The nature of the evidence
[28] The parties agreed that, along with the affidavits and exhibits filed in both the family protection proceedings and the relationship property proceedings, I should receive into evidence the affidavits and exhibits produced in a separate proceeding concerning the trusteeship of the TF Trust. In addition to himself, the trustees appointed by Graeme at the time of the settlement of the trust in September 2003 were Ms Bridget Gorinski, an investment advisor and professional trustee, and Mr John Burrett, a former bank officer and insurance broker who was a close friend of Graeme. When Graeme died, Colleen and a solicitor, Mr Jeremy Goodwin, were appointed trustees under the power of appointment in Graeme’s will.
[29] Ms Gorinski, Mr Burrett and Mr Goodwin provided affidavit evidence and were cross-examined. I heard evidence also from Colleen and Lyall, and another solicitor, Mr Bruce Reid, who advised Colleen in January 2002. Other witnesses who provided evidence by affidavit, including the Thurston grandsons, were not required for cross-examination.
[30] As a result, I have received comprehensive evidence from relevant witnesses about the history of acquisition and disposition of assets by Graeme; establishment of the TF Trust and the management of its affairs; the circumstances in which Graeme and Colleen signed the contracting out agreement in 2002; the circumstances in which wills were executed from time to time, particularly Graeme’s last will dated 14 August 2009; and the circumstances in which Graeme signed the memorandum of wishes shortly before his death.
Colleen’s application to set aside the election of Option B
[31] Logically, it is necessary first to resolve Colleen’s claim to set aside her election under the PRA of Option B, in which she accepted the provisions of Graeme’s will.
[32] The Court is empowered by s 69(1) of the PRA to set aside the choice of Option B under s 61(1) of the Act if the Court is satisfied that any of the grounds provided in s 69(2) apply. Section 69(2) is as follows:
69 Chosen option may be set aside
…
(2) The Court may set aside a choice of option only if—
(a) it is satisfied that any of the following apply:
(i) that the choice of option was not freely made:
(ii) that the surviving spouse or partner did not fully understand the effect and implications of the choice:
(iii) that since the choice of option was made, the surviving spouse or partner has become aware of information relevant to the making of a choice of option:
(iv) that since the choice of option was made, a person (other than the surviving spouse or partner) has made an application under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955 in respect of the estate of the deceased spouse or partner; and
(b) having regard to all the circumstances, it is satisfied that it would be unjust to enforce the choice of option.
[33] Section 69(3) of the PRA provides that in deciding whether or not to set aside a choice of option, the Court must have regard to the circumstances in which the choice of option was made; the length of time since the choice was made; and any other matters that the Court considers relevant.
[34] Whether Colleen will suffer any injustice if her choice of Option B is enforced depends, in part at least, on whether her applications to set aside the 2002 contracting out agreement as void or to unwind its effect have merit.
The contracting out agreement under s 21 PRA
[35] Consistently with the statutory scope of such agreements, the contracting out agreement provides for the status, ownership, and division of property (including
future property), during the joint lives of the partners to what was then a de facto relationship, with other provisions addressing the division of property in the event of their death.3 The document referred specifically to the provisions of the will which Graeme executed on 29 January 2002.
The preparation of the contracting out agreement
[36] The contracting out agreement was prepared by Graeme’s solicitor, Mr Goodwin. In July 2001, Mr Goodwin had provided Graeme with a comprehensive memorandum of advice about the implications of the Property (Relationships) Amendment Act 2001, in light of Graeme's instructions that he did not wish to relinquish control over his assets. The terms of agreement addressed Graeme's wishes in response to what would otherwise have been, in effect, a statutory transfer of half the matrimonial home and chattels from 1 February 2002.
[37] Mr Goodwin’s memorandum of advice recorded Graeme’s intention to protect Colleen’s position in terms of housing and an income level similar to that which Graeme and she enjoyed. Among the issues drawn to Graeme’s attention by Mr Goodwin was the prospect that the estate-planning structure should protect Colleen’s interests against future claims by “others” after Graeme’s death. Given the
18-year age difference between Graeme and Colleen, the possibility of Colleen forming a new relationship after Graeme died was not fanciful. It was open to Graeme to take such steps as he thought appropriate to ensure that so much of his wealth as he passed on to Colleen should not end up in the hands of a stranger.
[38] Because the agreement was signed by Colleen without any amendment to the version shown to Mr Reid, the solicitor who advised her on its terms, it is appropriate to examine what Mr Goodwin prepared on the basis of Graeme’s instructions. Two aspects of the agreement are significant for the proper understanding of the estate-planning arrangements which Graeme made subsequently, particularly at the time he settled the terms of the TF Trust in 2003 and
when he executed his last will in August 2009. They are, first, the allocation of
3 PRA, s 21(1) and (2).
separate property and, second, the provisions addressing the division of property on separation or death.
The allocation of separate property
[39] The agreement identified what Colleen and Graeme agreed was held by each of them as separate property. Graeme’s separate property was listed in these terms:
SCHEDULE A
Separate Property of Graeme N Thurston derived from the sale of
Thurston Holdings Limited
$ 1 Cash 142,962 2 Term Deposits 1,101,199 3 Bonds 2,220,660 4 Shares:
- Australia
- Global
- New Zealand
2,361,533
1,504,345
1,499,150
5 … Ronaki Road, Mission Bay 3,000,000 6 … Sanctuary Cove AUD1,100,000 7 Motor vehicles
- Ford – Australia
- Lexus – New Zealand
AUD12,000
30,000
[40] Colleen’s separate property was identified in the agreement as follows:
SCHEDULE B
Colleen’s separate property
$ 1 Audi A4 75,000 2 Bank accounts 55,000 3 JB Were portfolio investments 600,000 est 4 Jewellery 125,000
[41] I note that the Sanctuary Cove property is outside the jurisdiction of the New
Zealand courts under the PRA,4 but it is relevant for the purposes of determining the equities of the allocation of separate property as between Graeme and Colleen.
4 PRA, s 7(1).
The arrangements to apply while Graeme and Colleen were living together as a couple
[42] When they signed the contracting out agreement in January 2002, Graeme and Colleen had been living together happily for nearly 30 years. There was no imminent likelihood of separation, and no suggestion that the continuation of the relationship depended on the signing of the agreement by Colleen. It was never suggested by Colleen that she lacked financial support from Graeme between 1974 and 2002, or thereafter, and nothing in the February 2002 arrangements prevented Graeme from continuing to be a loving and dutiful partner and husband. Notwithstanding the underlying assumption that Graeme’s separate property was his to use as he saw fit, the assets were available to be used for the common benefit of the couple for the rest of his life.
What was to happen under the agreement if Graeme and Colleen separated
[43] The arrangements under the agreement which were to apply in the event of separation evince an intention by Graeme to provide sufficient assets for Colleen to enable her to either live in the property at Sanctuary Cove or dispose of it and acquire a residence in New Zealand, and to have sufficient capital to generate an income from which she could support herself comfortably. In addition to the Queensland property, Colleen would have had separate property valued (in 2002 terms) at $855,000 and a capital sum of $2.5 million held on trust from which she could draw up to $1.5 million for her own use, leaving $1 million in trust to provide further income.
[44] The Graeme Thurston Family Trust, which was recognised by the contracting out agreement as having been created contemporaneously, was never fully implemented. Apart from the initial settlement of $1,000, no assets were transferred to that trust which became defunct with the settlement of the TF Trust in September 2003.
What was to happen if Graeme died before Colleen
[45] In the agreement, which was binding upon the executors and administrators of each party, Colleen acknowledged that she was aware of and accepted the provisions Graeme had made for her in the will which he signed at the time of the agreement. She agreed “irrevocably” not to lodge a claim against the executors and trustees of his will under legislation relating to matrimonial or relationship property, nor to make any claim under the FPA or the Law Reform (Testamentary Promises) Act 1949 for any further provision.
[46] In return, Graeme agreed not to amend his will to alter the provisions made for Colleen without consulting her. The will provided that Colleen would receive a legacy of $1 million and the Sanctuary Cove property or a sum equivalent to the net proceeds received from its sale. It also provided that Colleen would be entitled to live in the Ronaki Road property rent free for a period of four years from the date of Graeme’s death, with the estate meeting all outgoings including maintenance. As with the arrangements to apply on separation, a trust fund of $2.5 million would provide Colleen with an income and, upon her request, the right to draw up to
$1.5 million of the capital.
[47] It is clear, therefore, that in 2002 Graeme intended that, after his death, Colleen would have the ownership of substantial cash and property assets and the ability to receive an income from which she could live comfortably. The balance of Graeme's separate property was to be distributed to Esther (who would have continued to receive a tax-free fortnightly allowance of $450 and sufficient funds to meet the outgoings on the Rotorua property), to Lyall ($250,000), Oliver and Christian ($150,000) when they turned 30, and Simon ($300,000) when he turned
25. Charitable bequests totalled $105,000. The balance of Graeme’s assets would have been transferred to the Graeme Thurston Family Trust for the benefit of Lyall, the grandsons and their children.
Is the contracting out agreement void?
[48] Section 21F of the PRA provides:
21F Agreement void unless complies with certain requirements
(1) Subject to section 21H, an agreement entered into under section 21 or section 21A or section 21B is void unless the requirements set out in subsections (2) to (5) are complied with.
(2) The agreement must be in writing and signed by both parties.
(3) Each party to the agreement must have independent legal advice before signing the agreement.
(4) The signature of each party to the agreement must be witnessed by a lawyer.
(5) The lawyer who witnesses the signature of a party must certify that, before that party signed the agreement, the lawyer explained to that party the effect and implications of the agreement.
Allegation that Colleen was not advised on the effect and implications of the agreement
[49] The agreement entered into on 29 January 2002 appears to meet the formal requirements of the section but Colleen seeks a declaration that the agreement is void because the independent legal advice she received from Mr Bruce Reid, the solicitor arranged to advise her by Graeme’s solicitor, was wholly inadequate and did not meet the standard required by subsection (5) .
[50] Colleen saw Mr Reid on 21 January 2002 for no more than an hour and possibly less. Although Mr Reid suggested that he had received a draft of the agreement from Mr Goodwin prior to his initial meeting with Colleen, there is no evidence to support that suggestion and it seems probable that Colleen took a copy of the agreement with her to the meeting.
[51] It was Colleen’s evidence that Mr Reid did not explain to her that within a few days of their meeting a change in the law would create in her favour a legal interest in the Ronaki Road property and the family chattels by virtue of their becoming relationship property. She claimed not to have been aware from other sources of the impending law change. I find that evidence to be improbable and that Colleen's recollection is faulty. Even if Colleen was unaware of the change in the law from news media coverage at that time, it is not at all likely that Graeme would
have commissioned, and asked her to see a lawyer about, a formal legal document dealing with property matters without some explanation. Colleen impressed me as an intelligent and capable woman and I do not accept that she did not understand the significance of the two schedules being headed "separate property".
[52] Mr Reid’s file notes are no longer available to assist his recollection of his meeting with Colleen but he said in evidence that he remembered her because she arrived in an expensive car and he could not help but notice the large ring on her finger. He said that because of the impending change in the law he knew that he would have to take Colleen through the alternative scenarios of her legal position from 1 February 2002 if she did not enter into the agreement and her position under the agreement if she entered into it. Mr Reid said that he was certain that Colleen and he would have discussed that under the new law the Ronaki Road family home and chattels would become relationship property. He said he recalled Colleen telling him "she was not interested in Ronaki Road; while she did not want to be thrown out of it as soon as Graeme died, it was ultimately for his family."
[53] It was Mr Reid's evidence that he discussed with Colleen the disparity between the value of the schedule A assets recorded as Graeme’s separate property and the value of the schedule B assets recorded as her separate property. He said that to the best of his recollection Colleen told him the disparity existed because the assets were derived from Graeme’s business interests which Graeme had before they began living together. I consider it is likely, however, that Mr Reid understood that to be the position because of the recital to that effect under the heading to schedule A. Under close cross-examination by Mr Waalkens, Mr Reid conceded that he made no attempt to verify the provenance of the assets listed, nor their stated values, and that he was unaware of some significant assets – a boat worth $650,000 and a home built at Acacia Bay, Taupo – which had been bought and sold during the relationship.
[54] Mr Reid noted that the agreement contained an acknowledgement in clause
8.3 that Colleen was aware of and accepted the provisions Graeme had made for her in his will dated 29 January 2002. He advised Colleen, and informed Mr Goodwin, that he was not prepared to certify that Colleen had received full advice on the
implications of the agreement until after Graeme’s signed will had been sighted. Relevant excerpts from Graeme’s will were provided and Colleen returned to Mr Reid’s office for a brief meeting on 29 January 2002 at which she signed the agreement.
Application of Coxhead v Coxhead principles
[55] Both Mr Waalkens QC and Ms Bruton referred me to the well-known observation of Hardie Boys J in Coxhead v Coxhead that the requirement under s 21F(5) of independent legal advice is no mere formalism. Delivering the judgment of the Court of Appeal, the Judge said:5
Each party must receive professional opinion as to the fairness and appropriateness of the agreement at least as it affects that party's interests. The touchstone will be the entitlement that the Act gives, and the requisite advice will involve an assessment of that entitlement, and a weighing of it against any other considerations that are said to justify a departure from it. Advice is thus more than an explanation of the meaning of the terms of the agreement. Their implications must be explained as well. In other words the party concerned is entitled to an informed professional opinion as to the wisdom of entering into an agreement in those terms. This does not mean however that the adviser must always be in possession of all the facts. It may not be possible to obtain them. There may be constraints of time or other circumstances, or the other spouse may be unable or unwilling to give the necessary information. The party being advised may be content with known inadequate terms. He or she may insist on signing irrespective of advice to the contrary. In such circumstances, provided the advice is that the information is incomplete, and that the document should not be signed until further information is available, or should not be signed at all, the requirements of subs (5) have been satisfied.
[56] I accept that Mr Reid's advice to Colleen was perfunctory. Given the nature and value of the property concerned and the substantial disparity in the allocation of separate property after a de facto relationship which had lasted harmoniously for 28 years, a reasonably prudent legal adviser ought to have sought information about the source of the funds used to accumulate Graeme's purported separate property totalling approximately $13 million. In the absence of evidence supporting the assertion that Graeme’s wealth was derived from the sale of his business, the least Mr Reid should have done was to advise Colleen that undertakings or warranties as
to the source and value of the assets should be included in the agreement. But
5 Coxhead v Coxhead [1993] 2 NZLR 397 (CA) at 403.
I accept that Mr Reid informed Colleen that the new law would entitle her to claim a half share of the Ronaki Road property and contents as relationship property.
[57] Mr Waalkens submitted that it was fanciful for Mr Reid to suggest, as he did in evidence, that Colleen told him she “had no interest” in the Ronaki Road property when it was clear that the property was “her pride and joy”. On balance, however, I accept that Colleen told Mr Reid that, while she would not want to be required to leave the home she loved immediately after Graeme's death, she understood that Graeme wanted the property to be an asset for the benefit of his son and grandsons in due course. Such a concession was consistent with the evidence of Graeme's intentions regarding the property. Mr Burrett’s evidence about the large home, which includes a separate gatehouse, was that Graeme told him that “one person rattling around in here is silly, you’ve got to buy something smaller.” That is consistent with the history of the arrangements made by Graeme in the several iterations of estate-planning instruments he prepared after 2002. It is clear to me that Graeme never intended that Colleen would own the Ronaki Road property.
[58] Colleen’s evidence was that she and Graeme enjoyed a happy relationship and that she trusted that the arrangements included by her husband’s solicitor in the contracting out agreement were fair. It is improbable, in my view, that Colleen would have refused to sign the agreement if Mr Reid had advised her against it on the basis she would be giving up rights she would acquire under the new law in a few days. So long as Colleen and Graeme continued to enjoy a happy relationship, she would enjoy a very comfortable lifestyle living in Auckland and Queensland, travelling extensively, and sharing the benefits of the income derived from Graeme’s substantial investments. In the event that the relationship ended by separation, Colleen would keep the separate property in Schedule B and become sole owner of the Sanctuary Cove property. Further, she would be the beneficiary of the sub-trust fund comprising $2.5 million of which she could draw up to $1.5 million for her own personal use and benefit. In the event of Graeme’s death, Colleen would receive a
$1 million legacy in addition to the transfer of the Sanctuary Cove property, the right to occupy Ronaki Road for a minimum of four years and the $2.5 million trust fund.
[59] Against a background of Colleen’s understanding and acceptance that she had made no contribution to the assets, and that she trusted her loving partner to provide for her, it was not unreasonable for her to conclude that she was well provided for in the contracting out agreement.
[60] Applying the considerations discussed by Hardie Boys J in Coxhead, I am satisfied that Mr Reid explained, and more importantly that Colleen understood, the effect and implications of the agreement. The agreement may be seen as establishing between the parties a basis for the shared enjoyment of what were essentially Graeme’s assets during their joint lives, with arrangements being made to accommodate future changes of circumstance through either separation or the death of one of the parties. I decline to hold that the agreement is void.
If necessary, declaration giving effect to agreement would be made under s 21H of the PRA
[61] If I am wrong in that conclusion, I am satisfied nonetheless that, in light of the history of the relationship after the agreement was signed and the provision for Colleen made by Graeme in the TF Trust deed and his last will, any non-compliance with the requirements of s 21F has not materially prejudiced Colleen’s interests. It is significant that, although she undoubtedly understood the relationship between the provisions of the trust deed and the wills, Colleen never protested that the contracting out agreement was unfair to her until Lyall and the boys filed their claims under the FPA. I would declare under s 21H(1) of the PRA that the agreement has full effect, for reasons I give more fully in the next section.
Would giving effect to the contracting out agreement cause serious injustice?
[62] Section 21J of the PRA provides that even though an agreement satisfies the requirements of s 21F, the Court may set the agreement aside if, having regard to all the circumstances, it is satisfied that giving effect to the agreement would cause serious injustice. The remedies sought by Colleen in this part of her claim are the
transfer of the Ronaki Road property to her absolute and sole ownership, or compensation.6
[63] The essential principles for the application of s 21J can be briefly stated. The right to contract out of the provisions of the PRA is fundamentally important to the scheme of the relationship property regime. Agreements which accord with the formal requirements are not be lightly set aside, as indicated by Parliament in the amendments which came into effect on 1 August 2001 by requiring an applicant to
prove that giving effect to the agreement would cause “a serious injustice”.7 The
onus of proving serious injustice lies on the person alleging it.8 In deciding whether giving effect to the agreement would cause serious injustice, I am required to have regard to the matters listed in s 21J(4).
Allegations of an unfair disparity and misstatement of asset values
[64] There was some dispute at the hearing over the amount paid by New Zealand Forest Products for the purchase of Graeme’s business in 1983. Sir Selwyn Cushing, a business associate and long-time friend of Graeme, was a director of Thurston Holdings Limited. Sir Selwyn said that he negotiated the sale of the shares for a price of about $17 million. As I understand it, that estimate includes the value of a parcel of New Zealand Forest Products shares which Graeme acquired as part consideration for the sale of his shareholding.
[65] Colleen introduced into evidence a document suggesting that the purchase price was considerably lower than that estimated by Sir Selwyn, but that appears to be an early draft. I am satisfied on the evidence, including Sir Selwyn's and Lyall's recollections that Lyall received approximately $800,000 for his minority parcel of
115,000 shares, that the total sum received by Graeme is likely to have been as estimated by Sir Selwyn. I take that to be the sum from which Graeme acquired the
separate property identified in the contracting out agreement.
6 PRA, ss 44 and 44C.
7 See Harrison v Harrison [2005] 2 NZLR 349 (CA); Wells v Wells (2006) NZFLR 870 (HC); and
Clark v Sims [2004] 2 NZLR 501 (HC).
8 Wood v Wood [1998] 3 NZLR 234 (HC).
[66] It was suggested on Colleen's behalf that the identification of the Ronaki
Road property in the contracting out agreement as having a value of $3 million in
2002 was disingenuous, taking into account that it was valued at $5 million only
20 months later when the property was transferred to the TF Trust. Under cross- examination, Mr Goodwin was referred to a file note in which he suggested the property was worth $4.5 million in 2001. He conceded that the value may have been understated in the agreement to bring the respective figures for separate property closer together. That answer surprised me; Graeme Thurston does not appear to me to be a man who would have acted deceptively. But even if there was an element of dissembling in the figure, ascribing a greater value would have made no difference to the advice given by Mr Reid or Colleen’s acceptance of the agreement.
[67] Colleen inherited a few thousand dollars from her parents. She said Graeme had given her $2,000 worth of shares in a private company and that she saved money out the funds Graeme gave her to run the household. She did not identify any other source of the $855,000 worth of separate property ascribed to her. In that regard, she may have been treated charitably in the allocation of her separate property in schedule B. Except for a faintly pressed argument that the cash and term deposits might have been considered relationship property under the PRA, it was not suggested to me that the agreement misrepresented the true status of the Ronaki Road property and the other schedule A items as the law stood on 29 January 2002. Colleen’s evidence-in-chief contained this exchange:
Q. Now you never challenged at the time that all those assets there [in schedule A] came from the sale of Thurston Holdings – were acquired as a result of the proceeds of sale of Thurston Holdings Limited – did you?
A. Why would I?
Claims for transfer of property settled on trust or compensation
[68] In support of the claims to remedies under ss 44 and 44C of the PRA, Mr Waalkens QC submitted that the contracting out agreement was the precursor to the transfer of the matrimonial home to the TF Trust in September 2003 and that the settlement of that property on a trust was intended to defeat Colleen's claims under the PRA or, at the very least, had the effect of defeating them. For present purposes,
I put aside potential objections to Mr Waalkens's rather strained extension of s 44C to the settlement on trust of separate property. Counsel cited Babylon v Babylon as an instructive example of the Court setting aside the settlement of the matrimonial home on a trust where that device had been intended to defeat the wife's claims to the home and other assets.9 But that was an entirely different case. The effect of the contracting out agreement in Babylon was to re-classify existing relationship property as separate property, so as to deprive the wife of relationship property rights to which she had formerly been entitled.10 In contrast, the Ronaki Road property was never relationship property and Colleen never had a legal interest in it.
Legitimate purpose in contracting out of the PRA
[69] In the absence of the agreement, the statutory changes due to come into effect on 1 February 2002 would have converted the Ronaki Road property and chattels into relationship property in which Colleen would have had a half share. It is clear that Graeme wished to ensure, before that occurred, that while the matrimonial home would remain available for their joint use it should also remain under his separate ownership and control as a major asset for future estate-planning purposes. He was entitled to rely on s 21 of the PRA to achieve that objective, as subsections (1) and (2) provide expressly. In Harrison v Harrison, the Court of Appeal acknowledged that, given the extension of the relationship property regime to de facto partnerships, it was “perfectly clear that [in enacting the 2001 amendments] the legislature did indeed intend to impose a higher threshold” for the setting aside of a contracting out
agreement than had previously been the case.11
[70] The 10-month delay between the enactment of the amending provisions in April 2001 and their commencement on 1 February 2002 was purposeful; it provided those persons potentially affected by the significant legislative change in property
rights with an opportunity to organise their affairs to avoid the consequences of it.12
9 Babylon v Babylon HC Auckland CIV-2006-404-3217, 12 October 2007 (interim judgment), and
Babylon v Babylon (2009) 27 FRNZ 622 (HC).
10 See the interim judgment at [63].
11 Harrison v Harrison, above n 7, at [29] and [30].
12 Matrimonial Property Amendment Bill 1998 and Supplementary Order Paper No 25 (109-3) (select committee report) at 13.
[71] Mr Waalkens argued that it was highly likely that if Colleen had become entitled to a half share in Ronaki Road and the chattels, Graeme would have left his half share to her in his will. But for the reasons given above, I am far from satisfied that is correct. The Ronaki Road property represented a large portion of Graeme’s assets and he was obviously concerned to ensure its preservation as an asset for the ultimate benefit of Lyall and his grandsons, as Colleen conceded. Furthermore, he had been expressly warned by Mr Goodwin about the risk of dissipation of that asset to a third party if a share passed to Colleen on his death. When Colleen challenged Mr Goodwin in 2009 over the provisions of the will Graeme executed in 2003, it was about the arrangements for the Sanctuary Cove property in which Graeme and she had spent many months each year, not about the Mission Bay home.
No order for transfer of trust property or compensation
[72] Those findings are sufficient to dispose of Colleen’s claim that an order should be made under s 44 of the PRA directing the return of the Ronaki Road property to Graeme’s estate, or under s 44C for compensation. The evidence establishes that Ronaki Road was separate property at the time the contracting out agreement was entered into and, since I have held that the agreement was effective in preserving that status, the settlement of the property on the trust in 2003 was not a disposition caught by the section. Colleen had no claim to the property which could be defeated by the disposition.
Summary of conclusions as to validity of contracting out agreement
[73] As the history of estate-planning arrangements put in place by Graeme demonstrates, the terms of wills and trusts executed by him in 2002 and subsequently up to the execution of his last will in August 2009, were founded upon the agreed allocation of separate property in 2002. Graeme said in his memorandum of wishes in August 2010 that his primary purpose in setting up the TF Trust was to provide specifically for Colleen in the event that he died before her. His intention to make substantial provision for Colleen out of his separate property was obvious in the provisions of the will and the contracting out agreement itself, and the different
arrangements put in place by Graeme from time to time were variations of that fundamental intention.
[74] I have concluded, for these reasons, that there is no principled basis upon which the contracting out agreement should be set aside. It was entered into over
14 years ago and the management of both Graeme’s and Colleen’s financial affairs over the first eight-and-a-half years of that period was predicated on the way in which separate property was allocated in that agreement. Far too much water has flowed under far too many bridges to now divert the flow in an entirely different direction. Bearing in mind the interwoven arrangements in the trust deed and the will, it is more appropriate to consider whether any injustice may be redressed under the provisions of the FPA.
Application to set aside Option B declined
[75] At the time Colleen applied for probate of Graeme's will, Mr Goodwin did not give her full advice about her choice of Option B. However, by the time Graeme executed his last will in September 2009, Colleen and Mr Goodwin were closely involved in the management of Graeme's financial affairs and Colleen had been advised in connection with mutual wills provisions in Graeme's and her wills. It was inevitable that she would elect to receive the benefits of Graeme's will, the terms of which she understood fully. I decline the application under 69 to set aside Colleen’s election of Option B.
Claims under the FPA – applicable legal principles
[76] If adequate provision is not available from a deceased’s estate for the proper maintenance and support of persons entitled to apply under the FPA, the Court may, at its discretion, order that any provision the Court thinks fit be made out of the deceased’s estate for all or any of those persons.13 Colleen, Lyall and the grandsons
are persons entitled to make a claim under the Act.14
13 Family Protection Act 1955, s 4(1).
14 Section 3(1)(a), (b) and (c).
[77] In assessing whether a claimant has received adequate provision from a deceased’s estate, the courts are not concerned solely with financial need. Speaking for the plurality in Williams v Aucutt,15 Richardson P said:
The test is whether adequate provision has been made for the proper maintenance and support of the claimant. “Support” is an additional and wider term than “maintenance”. In using the composite expression, and requiring “proper” maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. “Support” is used in its wider dictionary sense of “sustaining, providing comfort”. A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case.
[78] In Auckland City Mission v Brown,16 after citing that passage, the Court of Appeal observed that in many cases the question whether adequate provision has been made for proper maintenance and support is likely to involve a compendious inquiry into the combined elements of the composite expression. It is where it is accepted that the claimant has adequate provision from his or her own resources and the existing testamentary provision for their proper maintenance that the inquiry will focus on the adequacy of the provision for proper support in the circumstances.
[79] The well-known expression of the test by Cooke J in Little v Angus17 was approved in Williams v Aucutt as being still applicable:
The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and, if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased’s bounty are highly relevant. Changing social attitudes must have their influence on the existence and extent of moral duties. Whether there has been a breach of moral duty is customarily tested as at the date of the testator’s death; but in deciding how a breach should be remedied regard is had to later events.
[80] In Williams v Aucutt, and again in Henry v Henry,18 the Court of Appeal emphasised that the courts are not entitled to re-write the will on the basis of what
15 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [52].
16 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA) at [35].
17 Little v Angus [1981] 1 NZLR 126 (CA) at 127.
seems fair. The court’s function is limited to ordering such provision as is sufficient to repair any breach of moral duty. Beyond that point, the testator's wishes should prevail even if the individual judge might have seen the matter differently.
Principal matters to be considered regarding FPA claims
[81] Determining the claims under the FPA requires a consideration of the provisions made, looking at both the will and the TF Trust deed; a consideration of the nature of the relationship between Graeme and each of the claimants, and his moral duties to them; and an assessment of the claimants’ respective financial needs.
Graeme’s September 2003 will
[82] Graeme and Colleen married in June 2003. Graeme signed a new will in contemplation of the marriage, in circumstances which breached his obligation to consult Colleen about any changes which affected her. The breach is immaterial, however. The changes benefited Colleen and, in any event, Graeme instructed Mr Goodwin only a month later that he wished to alter the will and trust arrangements to reduce the direct provision for Colleen by the estate and make her a beneficiary of the family trust. I infer that among the reasons for the new arrangement was that it would be administratively more efficient: the testamentary trusts could be wound up prior to Colleen’s death, but the arrangements for her to be provided cost-free accommodation and substantial capital in her own right could be maintained under the terms of the ongoing family trust.
[143] In respect of the estate of Graeme Nigel Thurston, with reference to Graeme’s last will dated 14 August 2009, I make these orders pursuant to s 4(1) of the Family Protection Act 1955:
(a) Further provision from the estate shall be made as follows:
(i)to Lyall Graeme Thurston, the sum of $800,000 in addition to the sum of $200,000 paid to him under clause 4.1(b) of the will;
(ii)to Simon Graeme Thurston, the sum of $500,000, which sum includes the $100,000 left to him under clause 4.1(c) of the will;
(iii)to Oliver John Thurston, the sum of $300,000, which sum includes the $75,000 left to him under clause 4.1(d) of the will; and
(iv)to Christian James Thurston, the sum of $300,000, which sum includes the $75,000 left to him under clause 4.1(e) of the will.
(b) The estate shall pay to Simon Graeme Thurston interest on the sum of
$100,000, at a rate equivalent to the prescribed rate defined in s 87(3) of the Judicature Act 1908 which is applicable at the date of payment, for the period from 9 August 2013 to the date of payment.
(c) The sums payable in paragraph (a) shall be paid as soon as is reasonably practicable. The estate shall pay to each of the named recipients interest on such part of the sum ordered to be paid as remains unpaid after 18 March 2015, at a rate equivalent to the prescribed rate defined in s 87(3) of the Judicature Act 1908 which is applicable at the date of payment.
(d)Colleen Eliza Thurston shall not be required to leave to the Thurston Family Trust any property she has received or receives under the terms of the will.
[144] Leave is reserved for the trustees and any claimant to make further submissions strictly as to the implementation of the orders made including, without limitation, submissions concerning the steps to be taken to enable the estate to make the payments ordered. Any such submissions shall be filed and served not later than
18 November 2014.
[145] I dismiss Colleen’s applications under the Property (Relationships) Act 1976.
Costs
[146] Any party seeking costs may apply by memorandum served and filed not later than 20 November 2014. Any memoranda in reply shall be filed and served by
18 December 2014.
[147] Decisions as to costs will be made on the papers unless the Court directs otherwise.
……………………………………
Toogood J
6