LUSTY and BROWNE as executors of the Estate of Kenneth Richard Lusty v C M THORBURN and C E THORBURN as trustees of the THORBURN TRUST Costs Judgment [2019] NZHC 2945

LUSTY and BROWNE as executors of the Estate of Kenneth Richard Lusty v C M THORBURN and C E THORBURN as trustees of the THORBURN TRUST Costs Judgment [2019] NZHC 2945

Costs were reserved because the plaintiffs' decision to bring summary judgment was not unreasonable given substantive factual disputes and Attorney‑General input, alternative procedures proposed by defendants were inappropriate for the substantive issues, settlement refusal was not plainly unjustified, and defendants' impecuniosity did not justify a costs order.

Citation
[2019] NZHC 2945
Parties
Plaintiff (executor of the Estate of Kenneth Richard Lusty): Aileen Beryl Lusty; Plaintiff (executor of the Estate of Kenneth Richard Lusty): Ronald Hunt Lusty; Plaintiff (executor of the Estate of Kenneth Richard Lusty): Warwick James Roland Browne; Defendant (trustee of the Thorburn Trust): Craig Maxwell Thorburn; Defendant (trustee of the Thorburn Trust): Carly Eve Thorburn
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 November 2019
Procedural Posture
Application for Specific Performance (summary Judgment Application) / Costs Judgment Following Dismissal of Summary Judgment Application
Outcome
Costs reserved on the plaintiffs' unsuccessful summary judgment application.
Legal Topics
Specific Performance, Summary Judgment, Costs at Interlocutory Stage, Declaratory Relief, Trustees' Powers, Impecuniosity
Trusts Contract Law Equity Civil Procedure Costs Specific Performance Summary Judgment Costs at Interlocutory Stage +3 more

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Parties

Aileen Beryl Lusty

Plaintiff (executor of the Estate of Kenneth Richard Lusty)

Ronald Hunt Lusty

Plaintiff (executor of the Estate of Kenneth Richard Lusty)

Warwick James Roland Browne

Plaintiff (executor of the Estate of Kenneth Richard Lusty)

Craig Maxwell Thorburn

Defendant (trustee of the Thorburn Trust)

Carly Eve Thorburn

Defendant (trustee of the Thorburn Trust)

Procedural Posture

Application for Specific Performance (summary Judgment Application) / Costs Judgment Following Dismissal of Summary Judgment Application

Legal Issues

  1. 1 Whether costs should be awarded against an unsuccessful plaintiff at the summary judgment stage
  2. 2 Whether the plaintiffs should have pursued directions or declaratory relief under s66 Trustee Act or the Declaratory Judgments Act instead of summary judgment
  3. 3 Whether the summary judgment application was unreasonable or an abuse of process

Ratio Decidendi

Costs were reserved because the plaintiffs' decision to bring summary judgment was not unreasonable given substantive factual disputes and Attorney‑General input, alternative procedures proposed by defendants were inappropriate for the substantive issues, settlement refusal was not plainly unjustified, and defendants' impecuniosity did not justify a costs order.

Court Disposition

Costs reserved on the plaintiffs' unsuccessful summary judgment application.

Orders

  • Costs reserved on the plaintiffs' unsuccessful application for summary judgment.