Ward v Ward HC Wellington CIV 2010-485-695

[2010] NZHC 2225

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-695

CIV 2009-485-1945

UNDER  the Administration Act 1969

IN THE MATTER OF     the estate of Adelaide Naina Ward of

Wellington, deceased

AND

IN THE MATTER OF     the estate of Robert Charles Ward of

Wellington, deceased

BETWEEN  JOHN WARD Plaintiff

ANDCHRISTOPHER NOEL WARD Defendant

Hearing:         On Papers

Counsel:         K E Stirling for Plaintiff

Defendant in Person

Judgment:      10 December 2010

COSTS JUDGMENT OF RONALD YOUNG J

[1]      In these proceedings Mr John Ward sought an order pursuant to s 21 of the Administration Act 1969 declaring Mr Christopher Ward unfit to act as an executor in the estates concerned and his removal as trustee.  Mr Christopher Ward opposed the removal and filed a counterclaim seeking a declaration that Mr John Ward was

unfit to act as an executor.

JOHN WARD V CHRISTOPHER NOEL WARD HC WN CIV 2010-485-695  10 December 2010

These  conclusions  amply  illustrate  Christopher Ward  is  not  fit  to  be  an administrator of these two estates and that it is expedient to discharge him to ensure the administration of these estates can now be advanced.

[3]      And at [57] I dealt with the application to remove Mr John Ward:

Mr Christopher Ward   has   made   a   number   of   allegations   regarding Mr John Ward’s honesty.  The allegations simply remain that, no more than allegations.  There is not one iota of evidence that Mr John Ward has done anything improper with respect to this estate.  The only criticism that could be possibly levelled at him is that he should have made this application earlier so that the impasse that has stricken these estates over the last few years could have been more speedily resolved.  Beyond that it is clear that he has taken proper legal advice.  He has complied with the legal advice and the legal advice has invariably been sensible and accurate.  There are, as I have said, therefore, no grounds upon which the application to remove him should properly be granted.

[4]      And finally at [58]  I said:

Regretfully what should have been a relatively simple and straightforward administration has turned into something of a nightmare for the beneficiaries in this estate.  To reassure them that everything is being done that should be done in a proper way I have decided that I should make an order appointing the Public Trustee as a further executor and trustee in this estate.  This will take part of the burden off Mr John Ward and assure those who are worried about the estate that everything is being done in a professional and accountable way.

[5]      The plaintiff has now sought costs.   The defendant although provided with the opportunity to respond has not done so.  The plaintiff seeks indemnity costs on the ground that the defendant acted vexatiously, frivolously, improperly and unnecessarily in defending the proceedings and in pursuing the counterclaim.

[6]      Firstly I agree that the plaintiff should have costs.   The second question is whether the plaintiff should have indemnity costs.  The indemnity costs are said to be $55,874.65.

(4)      The court may order a party to pay indemnity costs if—

(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in  commencing,  continuing,  or  defending a proceeding or a step in a proceeding; or ...

[8]      I agree this is a case where indemnity increased costs are justified given Mr Christopher Ward’s actions.  Mr Christopher Ward’s actions are detailed in my judgment  of  4 November 2010.    The  plaintiff  submissions  in  support  of  costs accurately reflects the defendant’s attitude.  I adopt them:

2It is submitted that the defendant had no chance of successfully defending the proceedings for the following reasons:

(a)The evidence revealed that the defendant did not understand his responsibilities and obligations as an executor;

(b)The defendant was unable to reasonably explain or dispute most of the allegations made by the plaintiff, including the defendant’s failure to take any real steps to administer the estates and failure without reason to accept or respond to proposals made by the plaintiff to resolve administration of the estates;

(c)       The affidavits filed by the defendant in these proceedings contained little or no material that responded to the extensive evidence filed by the plaintiff;

(d)The defendant seemed to wilfully disregard the facts and evidence presented by the plaintiff and known law regarding the duties of trustees/executors in pursuing his defence.

[9]      I agree with the plaintiff that Mr Christopher Ward made unsubstantiated allegations of fraud and improper conduct against Mr John Ward.  As I observed in my  judgment  there  was  not  one  iota  of  evidence  to  support  these  allegations. Mr Christopher Ward’s conduct was seriously improper.  The estates have not been able to be properly advanced for years primarily because of Mr Christopher Ward’s attitude and approach to their administration.

[10]     Costs based on a 2B basis would have been $48,316.  In those circumstances the request for indemnity costs is more than reasonable.  I therefore award indemnity

costs as sought and confirm disbursements also as sought in favour of the plaintiff.

Ronald Young J

Solicitors:

K E Stirling, Hayman Lawyers, PO Box 204, Wellington, email:  k[email protected]

C N Ward, 27 Tio Tio Road, Miramar, Wellington