Thurston v Thurston - [2013] NZHC 3250

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2021 [2013] NZHC 3250

BETWEEN LYALL GRAEME THURSTON Plaintiff

ANDCOLLEEN ELIZA THURSTON, JOHN STEPHEN BURRETT AND BRIDGET GORINSKI as trustees of the Estate of G N Thurston
Defendants

CIV-2012-404-2022

BETWEEN LYALL GRAEME THURSTON Plaintiff

ANDCOLLEEN ELIZA THURSTON AND JEREMY JAMES MALLABY GOODWIN
Defendants

Hearing: On the papers and 4 December 2013

Appearances: V T Bruton and D M Urmson for Plaintiff
A H Waalkens QC for C E Thurston
G M Harrison for J J M Goodwin

Judgment: 6 December 2013

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 6 December 2013 at 1.30 pm pursuant to r 11.5 of the High Court Rules

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

THURSTON v THURSTON [2013] NZHC 3250 [6 December 2013]

[1] This judgment determines matters as to costs between the parties in respect of two proceedings.

[2] The first, CIV-2012-404-2022, is a proceeding in which I gave judgment in July 2013 (“trustee proceedings”). In that judgment, and pursuant to the inherent jurisdiction of the Court, I granted an application by the Plaintiff for the removal of the Defendants as trustees of the Thurston Family Trust (“the trust”). The trust was settled by Mr Graeme Thurston (“Mr Thurston”), the Plaintiff’s father.

[3] The second proceeding was an application by the Plaintiff for the recall of grant of probate of Mr Thurston’s will (“probate proceedings”), being CIV-2012-
404-2021. The Defendants to this proceeding were the executors of the will. At the hearing before me the Plaintiff advised that proceeding would be discontinued, as it was shortly thereafter. Matters were left on the basis that costs on the discontinuance would be determined at the same time as costs in the trustee proceedings.

[4] I have received comprehensive submissions from all the parties. They have also had an opportunity to speak to those submissions at a telephone conference.1 I also gave the continuing trustees, Ms B Gorinski and Mr J Burrett, an opportunity to be heard. They advised they would abide the decision of the Court.

Probate proceedings

[5] Rule 15.23 of the High Court Rules provides:

15.23 Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[6] Counsel for the Plaintiff submits that, in this instance, the Court should order that costs are to lie where they fall on the grounds that the Plaintiff had a tenable basis for contending that Mr Thurston lacked testamentary capacity and that the
Defendants to the proceeding failed to discharge their onus as to capacity. Counsel

1 Held on 4 December 2013.

for the Plaintiff also submits that the decision to discontinue was made close to the date of the hearing before me, on the basis that the proceedings were unnecessary given the strength of the Plaintiff’s case on the trustee proceedings.

[7] I am not persuaded…

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 Thurston v Thurston

Details

AGLC: Thurston v Thurston [2013] NZHC 3250
Case: [2013] NZHC 3250
Decision Date: 6 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Peters delivered a judgment on costs in two proceedings between Lyall Graeme Thurston, the plaintiff, and various defendants. The first proceeding (CIV-2012-404-2022) involved an application by the plaintiff to remove certain trustees of the Thurston Family Trust. The second proceeding (CIV-2012-404-2021) was an application by the plaintiff for the recall of the grant of probate of the will of the plaintiff’s father, Mr Graeme Thurston. The plaintiff discontinued the probate application before the hearing. The primary legal issues were the costs to be borne by the parties and whether the defendants were entitled to indemnity from the trust fund for their costs. The court held that the plaintiff should pay the costs of the probate proceedings. In the trustee proceedings, the court determined that the plaintiff was entitled to an award of costs on a 2B basis, along with disbursements. The defendants were to pay the plaintiff’s costs and disbursements up to a 2B basis. The balance of the plaintiff's costs and disbursements was to be borne by the trust fund. The defendants were not entitled to indemnity for their liability to the plaintiff or for their own costs.

Orders