JL MARTIN AND ORS V RJ BURNSIDE AND ANOR HC NAP CIV-2009-441-230

JL MARTIN AND ORS V RJ BURNSIDE AND ANOR HC NAP CIV-2009-441-230

Summary judgment was appropriate because the defendants lacked a viable defence; plaintiffs entitled to Category 2B costs fixed at $8,960 plus disbursements $640; the first defendant's conduct was unreasonable such that he must personally pay the plaintiffs' costs and the second defendant's costs ($4,641.80) and not be reimbursed from the estate; the draft Thistle Paddock deed specified is ordered.

Citation
openlaw-a0ec8ea3_a485_4657_9ed9_8d064bd94854.pdf
Parties
Plaintiff: Julia Lynne Martin; Second Plaintiff: Wendy Lorraine Wilson; Third Plaintiff: Maree Alison Paterson; First Defendant / Trustee: Robert James Burnside; Second Defendant / Trustee: Alexander Craig Burnside
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 September 2009
Procedural Posture
Summary Judgment Application (civil Wills/estate/trust) / Costs Judgment Following Summary Judgment
Outcome
Summary judgment for plaintiffs; costs awarded to plaintiffs and second defendant; deed for Thistle Paddock ordered as drafted
Legal Topics
Summary Judgment, Trustee Duties, Estate Distribution, Costs Liability, Indemnity, Family Arrangement, Easement Dispute
Trusts Wills and Succession Civil Procedure Costs Summary Judgment Trustee Duties Estate Distribution Costs Liability +3 more

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Parties

Julia Lynne Martin

Plaintiff

Wendy Lorraine Wilson

Second Plaintiff

Maree Alison Paterson

Third Plaintiff

Robert James Burnside

First Defendant / Trustee

Alexander Craig Burnside

Second Defendant / Trustee

Procedural Posture

Summary Judgment Application (civil Wills/estate/trust) / Costs Judgment Following Summary Judgment

Legal Issues

  1. 1 Whether summary judgment was appropriate
  2. 2 Whether the first defendant's demand for an indemnity/release justified refusal to distribute estate assets
  3. 3 Whether the first defendant acted unreasonably such that he should bear costs personally and be denied reimbursement from the estate

Ratio Decidendi

Summary judgment was appropriate because the defendants lacked a viable defence; plaintiffs entitled to Category 2B costs fixed at $8,960 plus disbursements $640; the first defendant's conduct was unreasonable such that he must personally pay the plaintiffs' costs and the second defendant's costs ($4,641.80) and not be reimbursed from the estate; the draft Thistle Paddock deed specified is ordered.

Court Disposition

Summary judgment for plaintiffs; costs awarded to plaintiffs and second defendant; deed for Thistle Paddock ordered as drafted

Orders

  • The deed referred to in paragraph 72(c) of the 7 July 2009 judgment shall be in the terms of the draft Thistle Paddock deed enclosed with the letter of 14 July 2009 from Carlile Dowling to GW Calver
  • The first defendant shall pay the plaintiffs' costs on this summary judgment application on a 2B basis fixed at $8,960.00 and disbursements of $640.00