NEARY V NEARY AND SUMPTER HC AK CIV 2010-404-724

NEARY V NEARY AND SUMPTER HC AK CIV 2010-404-724 20 December 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2010-404-724IN THE MATTER OF the Family Protection Act 1955 AND IN THE MATTER OF the estate of JAMES FRANCIS NEARY BETWEEN SHIRLEY WELLBOURNE NEARY Appellant AND DIANNE CHARLOTTE NEARY AND MICHAEL HOWARD SUMPTER Respondents Hearing: 16 June 2010 Appearances: H Fulton for the Appellant S Clapham for the Respondent Judgment: 20 December 2010 at 10:00 a.m.JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 20 December 2010 at 10:00 a.m. pursuant to r 11.5 of the High Court Rules 1985. Registrar/Deputy Registrar Counsel:Mr H Fulton, Barrister, Auckland Ms S Clapham, Barrister, AucklandCopy to:Mr R Bell-Booth (for Appellant), Bell-Booth Sherry, Solicitors, Takapuna, Auckland Ms D Snow (for Respondent Beneficiaries), Draffin & Snow Law, Solicitors, Ponsonby, Auckland Mr M Sumpter (for Respondent Executors), Mahon & Sumpter, Solicitors, Takapuna, Auckland Mr G Stanton (for Sharmaine Rae), Muller Law, Solicitors, Pakuranga, Auckland[1] This is an appeal and cross-appeal against a decision declining all applications for costs in proceedings under the Family Protection Act 1955.Background[2] The appellant, Shirley Neary, and the deceased, James Neary, were married in 1946. For ease of reference, and intending no discourtesy, I will refer to them and their children and grandchildren by their first names. [3] Shirley and James had six children. Four children survived James: Dianne, Jennifer, Sharmaine and Lindy. A son, Michael, died before James without children. A daughter, Carolyn, died before James leaving two children, Paul and Matthew. [4] James died on 6 November 2006. James' assets were some chattels and personal effects and a half share in a house in Devonport, Auckland (the home). The home was occupied by Shirley when James died. The other half share was held by Shirley. They owned the home as tenants in common. [5] By his will James left his half share in the home to the Homai Trust, a trust he had established in 1996. He expressed a wish in his will that Shirley have occupation of the home during her lifetime. The will provides that following Shirley's death, or when she is no longer able to live in the home, the home is to be sold. The Homai Trust is then to be wound up and the assets of the trust are to be divided as follows:• 30% to his daughter Dianne.• 30% to his daughter Jennifer.• 10% to his daughter Sharmaine.• 10% to his granddaughter Melissa, who is Dianne's daughter.• 10% each to his grandsons Paul and Matthew, Carolyn's sons.[6] The will made no provision for Shirley, Lindy or for four other grandchildren (two children of Jennifer and two children of Sharmaine). James stated in the will that he made no provision for Shirley as any entitlement she may have had to a share or interest in his estate had already occurred or been satisfied by previous cash advances he had made to her. He said that no provision was made for Lindy as he was aware that it was Shirley's intention to leave her half interest in the home to Lindy. [7] There were claims under the Family Protection Act 1955 by Shirley, Lindy and Sharmaine. As recorded by Judge McHardy in his decision on the substantive issues:[4] Shirley's claim is for maintenance and support, her primary claim being that the deceased's half interest as tenants in common in the home be vested in her so that she has the ownership of the home that she has lived in for some 30 years. Lindy Lee and Sharmaine make claims but accept that these are largely dependent on their mother's claim. Lindy Lee in particular makes a claim for housing because she is disabled from working by a mental health disorder.[8] The claims were opposed by the beneficiary daughters Dianne and Jennifer, and the beneficiary grandsons, Paul and Matthew. I will refer to them collectively as the respondent beneficiaries. The Judge referred to the respondent beneficiaries as "the opposition", adopting a description used by Mr Fulton for the applicants in the Family Court. Melissa, a beneficiary as to 10%, and Dianne's daughter, appears to have taken no steps. The remaining beneficiary, Sharmaine, was a claimant as just noted. [9] The Judge said in the introduction to his substantive judgment:[6] Sadly, a significant rift has developed in this family because of this dispute. Positions have become very polarised. There has been a good deal of evidence filed in this matter whereby each side seeks to justify their positions in respect of what the deceased has done or ought to have done in his will. At the heart of the dispute is a disagreement as to the nature of the relationship the deceased and Shirley had during the latter part of the deceased's life. [7] On the one hand the applicants say there was an existing marriage relationship at the date of death while on the other, the opposition paint a picture of estrangement which they say had existed for a number of years before the deceased's death. The opposition's position is that thisestrangement explains why the will was completed as it was. It therefore cannot be ignored. Neither, they say, can the concern the deceased is said to have had, that the whole home would be left to Lindy Lee if he predeceased Shirley.[10] On the central question as to the nature of the relationship between Shirley and James in the latter part of James' life the Judge held that there had been an estrangement. Other significant areas of dispute concerned whether Dianne and Jennifer had unduly influenced their father or otherwise manipulated him into making the testamentary provisions he did make. The Judge held that "the evidence falls well short of raising any concerns" of undue influence. A further finding of relevance, based on Shirley's evidence in cross-examination, was that, as the Judge expressed it, "Shirley was adamant that it was her intention that the whole home goes to Lindy Lee". [11] On Shirley's claim, the Judge found that there was a breach of duty. However, he declined Shirley's claim for James' half share to be vested in her and awarded Shirley a life interest in James' share. Central to the Judge's conclusions in this regard is the following:[84] A widow has the right to have certain survivorship expectations and a widow's expectations in general are entitled to be high. It is primarily for this reason that I have come to the view that the deceased has breached his moral duty to Shirley despite the obvious signs of estrangement. The reasons recorded in the will for excluding Shirley in my view do not come up to the threshold of demonstrating that the deceased has during his lifetime satisfied that moral duty by monies paid. There may never have been a divorce between these two people but there was definitely a significant estrangement. However despite the provisions of the Property (Relationships) Act which has the underlying principle of equality, the survivorship aspect still in my view have to hold a significant sway when considering moral duty to a widow. [85] It is therefore necessary to now turn to how that breach can be properly remedied. At this time Shirley is entitled to have an expectation that she can remain in her home for as long as she wishes. That was the deceased's expectation. However, given the circumstances that I have found existed in the latter part of Shirley's marriage to the deceased, the fact that they seem to have been living independent lives does not put it in the same category as a widow who had had a loving, fully dependent relationship with her husband. [86] I take the view that the breach of moral duty in this situation can be remedied simply by providing Shirley with a life interest. To vest the whole property in her would be unjustified given the deceased's obvious wishes asexpressed in his last will. Apart from the house there is no capital which cause [sic] could be had to remedy the breach. [87] I direct that the trustees of the deceased's estate hold the deceased's share in the home in trust to provide Shirley with a life interest with a right of substitution to purchase a replacement home and to use the income from the estate's share of the balance of the sale proceeds for her lifetime. On Shirley's death the then value of the deceased's half interest in the home would be divided in terms of his will.[12] Lindy advanced a claim in her own right. There was no provision for her in James' will, but there had been a distribution to her from the Homai Trust of $44,000. Lindy has bipolar disorder. The Judge found that there is "a real question mark" as to whether Lindy would be able to find full-time employment. Lindy was living with her mother. In the event, taking account of the modest estate and the strength of competing claims, the Judge awarded $10,000 to Lindy. [13] Sharmaine's claim was declined. It is unnecessary to note the reasons. [14] At the conclusion of the substantive judgment, Judge McHardy expressed a preliminary view that all costs should be paid out of the estate, but reserved all questions of costs for consideration following filing of submissions.The costs judgment[15] The Judge noted that when he had expressed his provisional view that costs should be met from the estate he was unaware of the exact costs that had been incurred. He said that now he had the details it affected his thinking on the matter. The costs incurred to the date of the costs decision (or just before it) were as follows: Applicants' total cost 100,681.24 Trustees' solicitors' costs 9,679.70 Respondent beneficiaries costs 73,903.95 $184,264.89 It may be noted that the capital value of the home at September 2005 was said to be $890,000. Based on advice from counsel during the hearing of the appeal the marketvalue was estimated to be around $850,000; that is to say, the value of the half share of James' estate is around $425,000. [16] The essence of the application for the applicants was that all costs should be paid by the estate. The respondent beneficiaries submitted that the applicants should bear their own costs, and indemnify the estate and the respondent beneficiaries in respect of their costs, or at least make a substantial contribution towards those costs. The grounds for the application for an order against the applicants included, in particular: Shirley had not succeeded in her application for James' half share in the home to be vested in her; the order in her favour was one the respondent beneficiaries would have agreed to; a lot of unnecessary cost had been incurred in establishing that Shirley and James had been estranged for a reasonably lengthy period – that they had, in effect, separated; a lot of unnecessary cost was also incurred in responding to unjustified contentions against the respondent beneficiaries or in other respects; the award to Lindy was modest; and there was no award to Sharmaine. [17] There was a submission from Mr Sumpter, an experienced solicitor who is one of the respondent executors. He said:3. It is submitted on behalf of the Trustees that if all costs were paid from the estate this would be inequitable as it would significantly reduce the value of the estate. In contrast the Applicant's half interest in the property and other assets would remain intact and on the death of the Applicant the beneficiaries of her estate would share in a full half share interest in the former matrimonial home or any substitute property and any other assets. It would seem most unlikely that any of the beneficiaries who opposed the application would receive any share in the Applicant's half interest. 5. Indications were given to the Applicant's legal advisors that a formal life interest could have been vested to her as a way of resolving the Applicant's claim but this was rejected as the Applicant's response was that this was not adequate and would not give the Applicant the security that was considered appropriate. 6. The Judgement only provided a life interest in the property for the Applicant. It is suggested that had the Applicant been prepared to accept a life interest in the property that the parties could then have sought and in all probability obtained a consent order to this effect from the Court.[18] The Judge referred to parts of Mr Sumpter's submission. He then said:[23] Mr Sumpter is correct when he says that there is going to be a significant reduction in the value of the estate if all costs are paid by the estate. It does result in an equitable [sic]1 outcome given the evidence that I heard in this matter. [24] This is particularly the case given that the applicant widow indicated that she would be leaving her share in the property to one daughter. There is in my view therefore good cause to review my initial indication that costs should come out of the estate. [25] It would appear from the submissions made to me on the question of costs that efforts were made on both sides to settle. However the case that was put to me was on the basis that the widow at the very least should receive the deceased's share of the property. In this she did not succeed. However a breach of moral duty was found. Accordingly the opposition did not totally succeed either in upholding the will. [26] Having considered all the submissions I consider that this is not a situation where indemnity costs against any of the applicants should be made. Although it does seem that there was an extraordinary amount of work done, some of which was somewhat peripheral to the main issue I do not consider a situation has existed here where indemnity costs are justified. Although Sharmaine's claim failed totally I do not see that her claim in any way greatly increased the cost of the opposition. The same applies in respect of Lindy-Lee's partial success. [27] I have come to the view that the most appropriate way to deal with the situation that has arisen is that all costs should lie where they fall. The trustees' solicitors' costs should be paid out of the estate. My main reason for arriving at this decision is the fact that there would be an inequitable outcome to the opposition if all costs were to come out of the deceased's estate. A departure from the general practice is therefore justified.Principles on appeal[19] Both counsel recognised that, because this is an appeal against exercise of a discretion, the appellate court can only interfere with the decision if: (1) there is an error of law or principle; (2) the Judge has failed to take account of a relevant matter; (3) the Judge has taken account of an irrelevant matter; or (4) the decision is plainly wrong. 21 The word "equitable" is in the text, but the word should obviously be "inequitable": and see [27].2 Kacem v Bashir [2010] NZSC 112 at [32]; May v May (1982) 1 NZFLR 165 (CA) at 170;Blackstone v Blackstone [2008] NZCA 312, (2009) 19 PRNZ 40 at [8].[20] A Judge deciding an appeal from the exercise of a discretion cannot interfere with the original decision merely because the appellate Judge would have come to a different conclusion had he or she made the original decision. This is to be compared with a general appeal against a decision not involving the exercise of a discretion. In such a case the appellate Judge must review all relevant matters and come to his or her own conclusion.Submissions[21] For Shirley, as appellant, Mr Fulton maintained the main application that had been made in the Family Court that Shirley's costs should be paid by the estate, preferably in full, but at least to some reasonable extent. Mr Fulton advanced five main points in support of his submission that there were errors by the Judge when he exercised his discretion on the question of costs. It is convenient to deal with those points in the course of my discussion. [22] For the respondent beneficiaries, Ms Clapham advised that they would not have brought an original appeal, but brought the cross-appeal because of Shirley's appeal. The respondent beneficiaries resisted Shirley's appeal and sought a costs order in their favour, with these costs to be paid out of James' estate. The respondent beneficiaries did not advance any applications for costs on appeal against Shirley or the other applicants. [23] The respondent beneficiaries resisted Shirley's appeal principally on the following grounds: (1) the Judge was right in refusing costs for the reasons he gave; (2) the respondent beneficiaries incurred a lot of cost in establishing matters of relevance which were unreasonably disputed (and in particular the estrangement) and in resisting contentions which were found to be unfounded (such as undue influence of James by Dianne and Jennifer); and (3) the award to Shirley was what had effectively been offered to her before a large proportion of the cost had been incurred. The second and third points also provided grounds in support of the cross- appeal.Discussion[24] Except in one limited respect, I am not persuaded that there was any appealable error by the Judge when he exercised his discretion on the question of costs. I will outline my reasons by reference to the five principal grounds advanced for Shirley on this appeal. [25] Mr Fulton submitted, firstly, that, because Shirley was successful in her claim she ought to have costs in accordance with a general principle applicable to the determination of costs. This is the principle that, in general, costs should follow the event. In this case, it was said, Shirley had been successful in her claim and as a consequence she was entitled to at least some costs. [26] I am not persuaded that there was any error of principle in this regard. Firstly, the Judge did consider the question whether Shirley had succeeded. This is expressly referred to at [25] of his costs judgment, recorded at [18] of this judgment. It is general principle that costs will follow the event, but it is not a mandatory requirement. It was open to the Judge in the exercise of his discretion not to follow a general principle that costs follow the event. What is more, and this is the second point in response to Mr Fulton's submission, it does not appear on the facts of this case that Shirley was successful in substance, or at least sufficiently to warrant application of the general principle that costs follow the event. A breach of moral duty was established and Shirley was awarded a life interest in James' half share of the home, which she did not have under the will. However, she did not secure a vested interest in James' half share and, more particularly, it was the claim for vesting of the half share that was vigorously pursued by Shirley and vigorously resisted by the respondent beneficiaries. There is a related consideration. This is that there appear to be good grounds for concluding that Shirley could have obtained a life interest in James' half share by agreement at an early stage of this proceeding. The evidence in this regard is discussed below when considering a separate point arising on the appeal. The conclusion I reach in that regard supports the conclusion I have already indicated on the present point; there was no appealable error by the Judge in respect of the general principle that costs follow the event.[27] Mr Fulton submitted that there was an error of principle because the Judge failed to consider an award of some costs; he considered and rejected the claims for indemnity costs – that is to say, the total actually incurred – but did not go on to consider the possibility of an order that the estate pay some of the costs incurred. [28] A literal reading of the costs judgment would support that submission from a factual perspective. There is no express reference to the possibility of an award of costs less than the total sum incurred. However, when the costs judgment is considered in its entirety, and put into the context of the judgment on the substantive issues, and with due weight given to the submissions from Mr Sumpter for the trustees which the Judge accepted, it is implicit that the possibility of an award of a reduced sum was ruled out. It is not necessary that every submission be addressed and it is not necessary that every step in the reasoning to a conclusion be recorded. [29] The third point was founded on what was described as "the principle or practice" that the estate pay the costs. A Court of Appeal decision in Keelan v Peach3 was cited as authority. The statement in that case, at [7], was as follows:It is indeed the general practice in Family Protection proceedings for costs to be carried by an estate, although there are of course exceptions. Usually an unsuccessful claim will have failed on its merits rather than on issues of standing and often there will be reluctance on the part of the Court and, sometimes the parties, to exacerbate family rifts by personal costs order. What are the indications for departing from the general practice in this case?[30] There is a marked difference between a general practice and a principle of law. There was no discussion in the Court of Appeal's short judgment on costs on the scope of the practice. On the particular facts of that case the unsuccessful appellant was declined any award of costs from the estate and was ordered to pay a small contribution towards the costs of the respondent trustees and the residuary beneficiary. The discussion of this question in the texts indicates that there is likely to be a reasonably large number of cases where claimants or respondent beneficiaries, or both, are not allowed costs to be paid out of the estate.4 The Judge3 [2003] 1 NZLR 589 (CA); [2003] NZFLR 727.4 See, for example, Patterson Law of Family Protection in Testamentary Promises (3 rd ed, 2004) at para 17.40; Family Law Service, Lexis Nexis, Commentary 2, para 7.915.referred to the observations in Keelan v Peach. I do not consider there was any appealable error in this respect. [31] The fourth point was that the Judge had failed to take into account a relevant matter. This was, it was submitted, that the respondent beneficiaries and the estate refused offers to settle which Shirley had made and which were, it was submitted at, or close to, the award that was made. [32] I am not persuaded that the Judge failed to give consideration to these arguments. In the first place the Judge said, at [26], that he had "considered all the submissions". These submissions were produced in the large bundles of documents on appeal. They included, on both sides, copies of letters containing offers of settlement for Shirley and offers of settlement for the respondent beneficiaries. The Judge's reference to his consideration of "all the submissions" would probably be sufficient to dispose of this argument. But on this particular issue, the Judge in fact outlined the submissions made on both sides in respect of offers of settlement. [33] I am not persuaded that the Judge failed to give consideration to these arguments. What is apparent is that he did not consider they warranted an award of costs to either party out of the estate. As with the first point, it was not necessary for the Judge to set out at length his conclusions on the wide range of submissions that were made. [34] In case I am wrong, I will express my own view on this topic. The Calderbank letters on behalf of Shirley were annexed to one of Mr Fulton's submissions to Judge McHardy. I do not consider that the offers made on behalf of Shirley were "at, or close to, the award made" in her favour. Two of the three offers attached to Mr Fulton's submission required transfer to Shirley of James' half share. There was to be a covenant from Shirley to make a will leaving that half share to children and grandchildren, but this was on terms different from the terms contained in James' will. The dispositions in the will through the Homai Trust to the children and grandchildren who are now, in effect, the residuary beneficiaries, were not altered by Judge McHardy's decision. The third offer for Shirley proposed that James' trustees hold the half share on a life interest for Shirley, with power tosubstitute that home for another, as provided in the award. But this offer was again subject to final disposition of the half share owned by James' estate on terms different from James' will and with a further condition designed to seek to ensure that disposition of Shirley's half share to Lindy would not be challenged. [35] On the other side, I am of the opinion that there were effective offers from the respondent beneficiaries which, had they been acted on by Shirley and her advisers, would be likely to have resulted in settlement of this proceeding a long time before it went to hearing and with a significant saving of costs on both sides. Had I been deciding the question of costs at first instance this would at the very least have been a firm pointer to an award of costs adverse to the claimants. [36] The formal offers, also by way of Calderbank letter, on behalf of the respondent beneficiaries were also different from the final result. These were in letters from and following September 2008. However, a lot earlier than this there had been advice from the respondent beneficiaries which in my judgment was sufficient to have led to settlement on the same terms as the Court decision. [37] These are statements in affidavits of the respondent beneficiaries. In an affidavit of Dianne, sworn on 30 October 2007, she said:33. I have always expected that until she died my mother would be permitted to live at [the home] or any substitute home bought out of the proceeds of sale. However, I am of the view that [the home] is not suitable for mother.This was followed, in the same paragraph, with a summary of the reasons why Dianne considered that it would be better for her mother to move out of the home, including her mother's safety and the cost of maintaining the house. But there was no statement that she was in some way putting that as a condition of her mother's having an effective and effectual live interest. [38] Jennifer said, in an affidavit sworn on 31 October 2007:8.1 I understand that along with me, all my siblings and Matthew and Paul intend for mother to live [in the home] as long as she wishes.There is no condition attached to that statement, as there was none attached to the statement by Dianne, although Jennifer also referred to concerns about her mother's safety. Matthew and Paul Baxter made statements to essentially similar effect in affidavits sworn on 2 November 2007 and 15 July 2008 respectively. [39] The statements in these affidavits provide strong support for the submission by Mr Sumpter, recorded in part at [17] above. The first of these statements, from Dianne and Jennifer, were made a little over three months after the proceeding was issued, in October 2007. It appears reasonably clear that a lot of the costs were incurred after October 2007 through to the main hearing which commenced on 22 April 2009. [40] The clear advice from the respondent beneficiaries in the affidavits, and the indications that were given to Shirley's legal advisers to similar effect referred to in Mr Sumpter's submission, in my opinion provide solid grounds for Judge McHardy's refusal to award costs to Shirley. [41] Mr Fulton's final general point was that the Judge was "clearly wrong in not awarding any costs to the appellant". This was a submission which sought to bring together the preceding arguments. I am not persuaded that the collation of these points, which collation was supported by further submissions, demonstrates that the Judge was plainly wrong.Costs awards and Shirley's life interest[42] There has been no appeal against the substantive decision. The result is that Shirley has a now unchallengeable life interest in James' half share of the home. Shirley is entitled to use that half share to live in the home for the rest of her life. She is entitled, in terms of Judge McHardy's decision, to sell the home, and therefore the half interest of James' estate in it, and buy an alternative home. But of course the same applies to the alternative home – Shirley is entitled to live in it for the remainder of her life.[43] The only asset now in James' estate is the half interest in the home. If it was appropriate to make an order for costs, there is no cash fund from which costs can be paid, in favour of Shirley or the respondent beneficiaries. And costs cannot come from the proceeds of sale of the estate's half share of the home unless Shirley agrees to a sale and then agrees that the proceeds of sale relating to the estate's half share can be used to pay costs rather than being applied, as required in terms of her half interest, to buy another home or to be invested with the income going to her. [44] It is therefore not apparent where the costs would come from even if there was an entitlement. The Court could make some orders for costs to be paid out of James' estate if those orders are made subject to various conditions. For example, an order could be made for some costs to be paid out of James' estate in favour of Shirley, with that order conditional upon Shirley's agreeing to the existing home being sold and further agreeing to her life interest being diminished by the payment of costs. Shirley's consent would be required to her life interest being diminished because the life interest is not limited to the right to live in the home or in a substitute home. If she wished Shirley could elect not to live in the home and receive the income from it, or from the proceeds of sale of it. I can see no reason why orders of this nature should be made in light of the conclusions already reached relating to the Family Court decision on costs and the further observations in this judgment. [45] Without Shirley's agreement, an order for costs in favour of the respondent beneficiaries cannot be made that would enable any costs to be paid to the respondent beneficiaries out of the estate, during Shirley's lifetime. That is for the reason already recorded; there has been no appeal against the award of a life interest to Shirley, but an award of costs to the respondent beneficiaries to be paid during Shirley's lifetime would interfere with that life interest. [46] During Shirley's lifetime all parties can, of course, agree on arrangements which may enable some costs to be paid, but that is a matter for the parties, not for the Court.Costs after Shirley's death[47] There is one relevant matter that does not appear to have been addressed by the Family Court Judge. This is the possibility of reimbursement of the costs of the respondent beneficiaries out of the estate following Shirley's death. I am of the opinion that the respondent beneficiaries are entitled to reimbursement out of the estate following Shirley's death, or earlier termination of the life interest if that occurs by surrender of it. [48] The reasons for this conclusion are recorded in the earlier discussion, or implicit in that discussion. In essence, the costs incurred by the respondent beneficiaries have resulted in what is an essentially successful outcome for the benefit of all of the beneficiaries named in James' will. The outcome is that, subject only to Shirley's life interest, the principal asset of James' estate has been preserved for the benefit of all beneficiaries. Reimbursement of the respondent beneficiaries' costs as proposed has no effect on Shirley's life interest. In consequence Shirley is not required to contribute. The amount received by other beneficiaries of James' will will be reduced, but it appears that the reduction will not be significant compared with the benefit flowing from the costs incurred. [49] It is not appropriate to make an award of costs in favour of the claimants to be paid out of the estate when Shirley dies. That is for the reasons stated by the Judge and which have not resulted in any change on appeal. The result, given the circumstances with the effective division of assets between Shirley and James, and with Shirley's estate to be left to Lindy, would be inequitable.Result[50] The appeal is allowed to the extent that there will be an order for the costs incurred by the "respondent beneficiaries" to be paid from the estate of James Francis Neary on the death of Shirley Wellbourne Neary or earlier termination of the life interest of Shirley Wellbourne Neary. [51] Except to the extent just recorded the appeal is dismissed.[52] If there is any question of costs on the appeal memoranda should be filed. However, my preliminary view is that each party should bear their own costs. [53] The costs of the respondent executors will be met in the usual way from the estate and no order is required in that regard. __________________________________ Peter Woodhouse J