NEWSTEAD V FLINT HC CHCH CIV-2010-409-002592

NEWSTEAD V FLINT HC CHCH CIV-2010-409-002592 1 August 2011IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2010-409-002592BETWEEN LESLIE RUTH NEWSTEADPlaintiffAND GLILLIAN CHRISTINE FLINTDefendantHearing: 1 August 2011Appearances: I Hunt for PlaintiffA G Ogilvie for DefendantJudgment: 1 August 2011ORAL JUDGMENT OF CHISHOLM J[1] The plaintiff and defendant, who are sisters, are the daughters of Ruth Robertson who died on 6 May 2008. They were appointed executors under her last will. In this proceeding the plaintiff seeks the removal of the defendant as her co-executor and the replacement of the defendant by Stephen Andrew Jeffrey, who is the solicitor for the estate.[2] This morning the parties have resolved all issues other than costs. Pursuant to that agreement there will be orders in terms of paragraphs 1 – 4 inclusive of the draft order lodged with the Court on 27 July 2011.[3] As to costs, it is agreed that the defendant will met the sum of $4000 (whichis a proportion of the plaintiff's costs). This is to come out of the defendant's shareof the estate. A further $2875 is to be met by the estate. In the end result this will mean that the plaintiff will be left to carry approximately $4000, possibly a little more, of her costs in bringing this proceeding.[4] Agreement could not be reached as to the defendant's application for theestate to meet her costs which are approximately $3000. Mrs Flint seeks costs from the estate on the primary ground that until quite recently she believed that the matter could be settled on the basis that she would resign as executor and that she wouldpay $4000 towards the plaintiff's costs. Once she became aware that the plaintiff was seeking a larger sum for costs she instructed Mr Ogilvie. She maintains thatwithout her sister's change of heart it would have been unnecessary for her to incur legal fees.[5] The plaintiff's response is that, as is apparent from the letter of 28 May 2010 from the solicitors for the estate, the defendant has obstructed the basic administration and winding up of the estate for a long time. The plaintiff claims that the concerns expressed by the defendant were irrelevant to the proper administration of the estate, that she had no option but to bring this claim, and that it would be unfair if, in the end result, she was left carrying a bigger burden of the costs than her sister even though she has succeeded.[6] Obviously there are two sides to this argument and it is reasonably finely balanced. However, I go back to basic principles. The plaintiff has been successful in her application to have the defendant removed and replaced and in terms of the High Court Rules costs should follow the event. Of itself this counts against any order for costs in favour of the defendant. In fact if the plaintiff had sought 2B costs against the defendant, such costs would have probably been awarded which would have left the plaintiff better off than the order that I have made. It would be unfair if she indirectly had to carry a larger proportion of the costs than the defendant.[7] While I sympathise with the defendant to the extent that she has had to resort to legal advice, the reality is that there was no binding conclusion to her negotiations with the plaintiff. She cannot rely on estoppel. So I am afraid that her application for costs cannot succeed.Solicitors:Young Hunter, DX WP 21513, P O Box 929, ChristchurchBetter Lawyers Limited, P O Box 13-921, Christchurch