ATCHISON v BOYD [2017] NZHC 1942

ATCHISON v BOYD [2017] NZHC 1942

The Court appointed Christopher Robert Darlow as a court expert under r 9.36 to inquire and report whether the fees charged to Ms Boyd were reasonable in responding to instructions, whether fees were reasonable in all the circumstances, and whether any work was personal to Ms Boyd and not claimable from the estate;...

Source-derived case information.

Citation
[2017] NZHC 1942
Parties
Applicant (executrix): Catherine Ann Atchison; First Respondent (former Executrix): Karen Michelle Boyd; Second Respondent (former Executor): Sean Connolly
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 August 2017
Procedural Posture
Application for Directions Under S 66 Trustee Act 1956 (originating Application) / Case Management / Interlocutory Directions (appointment of Court Expert)
Outcome
Court appointed Christopher Robert Darlow as court expert under r 9.36 to assess reasonableness and estate claimability of Ms Boyd's legal fees and made ancillary directions including timetable and funding of the expert's costs; reserved all questions of costs.
Legal Topics
Appointment of Court Expert, Executor Removal, Recovery of Legal Costs From Estate, Reasonableness of Fees, Scope of Inquiry Under R 9.36
Trusts and Estates Probate Civil Procedure Costs Law Appointment of Court Expert Executor Removal Recovery of Legal Costs From Estate Reasonableness of Fees +1 more

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Parties

Catherine Ann Atchison

Applicant (executrix)

Karen Michelle Boyd

First Respondent (former Executrix)

Sean Connolly

Second Respondent (former Executor)

Procedural Posture

Application for Directions Under S 66 Trustee Act 1956 (originating Application) / Case Management / Interlocutory Directions (appointment of Court Expert)

Legal Issues

  1. 1 Whether costs incurred by the former executrix (Ms Boyd) should be paid out of the estate
  2. 2 Whether a court expert should be appointed under r 9.36 to assess the reasonableness and claimability of those costs
  3. 3 What scope the expert's inquiry should have (limited to solicitor files or broader factual inquiry)

Ratio Decidendi

The Court appointed Christopher Robert Darlow as a court expert under r 9.36 to inquire and report whether the fees charged to Ms Boyd were reasonable in responding to instructions, whether fees were reasonable in all the circumstances, and whether any work was personal to Ms Boyd and not claimable from the estate; the report was ordered to be filed by 6 October 2017, the expert's costs were to be paid initially from the estate (subject to later adjustment), and all questions of costs were reserved.

Court Disposition

Court appointed Christopher Robert Darlow as court expert under r 9.36 to assess reasonableness and estate claimability of Ms Boyd's legal fees and made ancillary directions including timetable and funding of the expert's costs; reserved all questions of costs.

Orders

  • Christopher Robert Darlow appointed as court expert under r 9.36 High Court Rules to inquire and report on specified questions regarding fees charged to Ms Boyd
  • Expert to obtain applicant's solicitors' files and report whether fees were reasonable in responding to instructions, reasonable in all the circumstances, and the extent any work was personal to Ms Boyd