Van Ryn v Van Ryn - [2023] NZHC 2414

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1279

[2023] NZHC 2414

IN THE ESTATE Of ANNA MARIA VAN RIJN, also known as ANNA MARIA LAFLEUR

BETWEEN

FRANCIS EVERARDUS MARIE VAN RIJN, RENE TITUS MARIE VAN RYN, and SIMON JOHN OLDBURY JONES

Plaintiffs

AND

MARIETTE MARIA BERNADETTE VAN RYN

First Defendant

AND

ROSITA ANTOINETTE ALIDA MARIA MURRAY

Second Defendant

AND

SASKIA ROBINA MARIA VAN RYN

Third Defendant

AND

ANTONIA LIDWINA MARIA BYNEVELT

Fourth Defendant

Hearing: On the papers at Auckland

Judgment:

31 August 2023

JUDGMENT (NO.3) OF POWELL J

[Costs]

This judgment was delivered by me on 31 August 2023 at 3.00 pm pursuant to
r 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

FRANCIS EVERARDUS MARIE VAN RIJN & ORS v MARIETTE MARIA BERNADETTE VAN RYN & ORS [2023] NZHC 2414 [31 August 2023]

[1] On 30 September 2022, I granted an application by the defendants to remove Jeremy Goodwin and Jeffrey Meltzer as executors of the estate of Anna Maria van Rijn (“Mrs van Rijn”) and appointed Catherine Atchison in their place (“the removal judgment”).1 The application was unopposed.2

[2] I subsequently declined to recall the removal judgment (“the recall judgment”).3

[3] The defendants, Mrs van Rijn’s four daughters, seek costs on both the removal and recall applications.

[4] With regard to the removal judgment, the defendants seek costs against the former executors personally, being:

(a)indemnity costs in the sum of $22,072.52; or

(b)increased costs in the sum of $11,830.50 (being a 50 per cent uplift on 2B scale costs); and

(c)disbursements of $200 being the court filing fee for the removal application.

[5]The defendants also ask the Court to make orders that the former executors:

(a)are to pay the defendants’ costs in relation to the removal application in their personal capacities; and

(b)are not entitled to be indemnified by the estate for these costs or their own costs and disbursements in relation to the removal application.

[6]In relation to the recall application, the defendants seek:

1 van Rijn v van Ryn [2022] NZHC 2498.
2 At [2].
3 van Rijn v van Ryn [2022] NZHC 2609.

(a)scale costs on a 2B basis of $1,434 against Sandra Grant and Simon Jones, at that time on the record as counsel for the plaintiffs.

[7] The former executors oppose any award of costs against them personally and do not seek that their own costs on the removal application be borne by the estate. No steps have been taken by counsel for the plaintiffs in relation to the costs on the recall judgment.

Costs on the removal judgment

[8] The defendants submit that the costs associated with the removal of the executors should fall upon the executors personally on the basis that improper or unreasonably incurred costs should not be borne by the estate. Counsel for the defendants submitted three reasons that justify payment by the executors in a personal capacity. First, costs associated with the removal application…

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 Van Ryn v Van Ryn

Details

AGLC: Van Ryn v Van Ryn [2023] NZHC 2414
Case: [2023] NZHC 2414
Decision Date: 31 August 2023

CaseChat Overview and Summary

In this case, the four daughters of Anna Maria van Rijn sought costs associated with the removal of the executors of Mrs van Rijn's estate and the unsuccessful attempt to recall the removal judgment. The defendants argued that the costs incurred in the removal of the executors should be borne by the former executors personally, rather than by the estate. They also sought costs in relation to the unsuccessful recall application, arguing that the costs should be borne by the former executors' lawyers.

The court considered the legal principles governing the personal liability of executors for costs. Executors are generally entitled to reimbursement for costs properly incurred in the administration of an estate, but may be personally liable for costs if they have acted unreasonably. The court also examined the circumstances of the removal application and the recall application, finding that the former executors did not act unreasonably in the proceedings and that the recall application was without merit.

The court concluded that the reasonable costs associated with the removal judgment should be met by the estate, as the removal was necessary in the best interests of the beneficiaries. The court also found that the costs of the recall application should lie where they fall, as the recall application was without merit and there was no formal application for recall.

The final orders of the court were that the defendants are entitled to be paid from the estate of Mrs van Rijn their reasonable costs in respect of the removal judgment, being $22,072.52 in legal fees and $200 in disbursements. Costs in respect of the recall judgment were to lie where they fall.

Orders