KELLERMAN v KELLERMAN-THORNTON [2020] NZHC 2804

KELLERMAN v KELLERMAN-THORNTON [2020] NZHC 2804

Applicant awarded costs on a 2B basis as the successful party; no uplift awarded because respondent's rejection of offers did not meet the threshold for unreasonable conduct justifying uplift; respondent not entitled to be indemnified from estate assets for legal costs of resisting the applicant's claims because she had charged unreasonable expenses to the estate, provided incomplete/misleading disclosures and was conflicted, making her removal justified; respondent ordered to meet costs of this costs application.

Citation
[2020] NZHC 2804
Parties
Applicant: Brendan Eugene Kellerman; Respondent: Margaret Yvonne Kellerman-Thornton
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 October 2020
Procedural Posture
Application Under the Administration Act 1969 to Remove an Executor / Costs Decision Following Substantive Judgment
Outcome
Costs awarded in favour of Brendan Eugene Kellerman on a 2B basis; no uplift; respondent's legal costs of defending the proceeding are not indemnified from estate assets; respondent to pay costs of this costs application; costs claimed by Alexander Kellerman allowed as per submissions.
Legal Topics
Removal of Executor, Executor Indemnity, Disallowance of Executor Expenses, Calderbank Offers, Costs Uplift
Trusts and Estates Civil Procedure Costs Removal of Executor Executor Indemnity Disallowance of Executor Expenses Calderbank Offers Costs Uplift

Case Brief

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Parties

Brendan Eugene Kellerman

Applicant

Margaret Yvonne Kellerman-Thornton

Respondent

Procedural Posture

Application Under the Administration Act 1969 to Remove an Executor / Costs Decision Following Substantive Judgment

Legal Issues

  1. 1 Whether the successful applicant should be awarded costs on a 2B basis
  2. 2 Whether a Calderbank/Calderbank-type offer justifies an uplift in costs
  3. 3 Whether the respondent's legal costs of defending should be met from estate assets (executor indemnity)

Ratio Decidendi

Applicant awarded costs on a 2B basis as the successful party; no uplift awarded because respondent's rejection of offers did not meet the threshold for unreasonable conduct justifying uplift; respondent not entitled to be indemnified from estate assets for legal costs of resisting the applicant's claims because she had charged unreasonable expenses to the estate, provided incomplete/misleading disclosures and was conflicted, making her removal justified; respondent ordered to meet costs of this costs application.

Court Disposition

Costs awarded in favour of Brendan Eugene Kellerman on a 2B basis; no uplift; respondent's legal costs of defending the proceeding are not indemnified from estate assets; respondent to pay costs of this costs application; costs claimed by Alexander Kellerman allowed as per submissions.

Orders

  • Costs awarded to Brendan Eugene Kellerman on a 2B basis
  • Costs sought by Alexander Kellerman in paragraph [7] of Mr Cairns' submissions allowed