Harker and Another v MGM Family Trust (Number: TM50521/1) and Others (2994/2022) [2023] ZAECQBHC 49 (5 September 2023)

Harker and Another v MGM Family Trust (Number: TM50521/1) and Others (2994/2022) [2023] ZAECQBHC 49 (5 September 2023)

The court found that Mr Harker, acting both as executor and attorney, failed to provide a substantive explanation for his conduct and did not demonstrate that he acted in the best interests of the estate. His actions in pursuing unmeritorious litigation, without regard to established principles and procedures, amounted to improper conduct. The lack of a valid Fidelity Fund Certificate and his own admission of difficulties with the Legal Practice Council further supported the conclusion that his conduct was improper. Consequently, the court exercised its discretion to order that costs be paid by Mr Harker personally, and directed that the judgment be brought to the attention of the Legal...

Citation
[2023] ZAECQBHC 49
Parties
Applicant: Joseph Ross Harker; Respondent: MGM Family Trust (Number: TM50521/1); Defendant: Phillip Christopher du Preez; Defendant: Christopher Grant du Preez
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
5 September 2023
Case Number
2994/2022
Procedural Posture
Civil Application / Costs Determination Following Dismissal of Main Application
Outcome
Costs order made against Mr Joseph Ross Harker in his personal capacity for improper conduct as executor and attorney.
Judges
Ellis
Legal Topics
Costs De Bonis Propriis, Fiduciary Duties of Executor, Improper Conduct, Attorney Ethics
Civil Procedure Commercial and Corporate Costs De Bonis Propriis Fiduciary Duties of Executor Improper Conduct Attorney Ethics

Case Brief

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Parties

Joseph Ross Harker

Applicant

MGM Family Trust (Number: TM50521/1)

Respondent

Phillip Christopher du Preez

Defendant

Christopher Grant du Preez

Defendant

Procedural Posture

Civil Application / Costs Determination Following Dismissal of Main Application

Legal Issues

  1. 1 Whether Mr Harker, as executor and attorney, should be personally liable for costs de bonis propriis.
  2. 2 Whether Mr Harker's conduct amounted to improper conduct justifying a personal costs order.
  3. 3 Whether the judgment should be brought to the attention of the Legal Practice Council and the Master of the High Court.

Ratio Decidendi

The court found that Mr Harker, acting both as executor and attorney, failed to provide a substantive explanation for his conduct and did not demonstrate that he acted in the best interests of the estate. His actions in pursuing unmeritorious litigation, without regard to established principles and procedures, amounted to improper conduct. The lack of a valid Fidelity Fund Certificate and his own admission of difficulties with the Legal Practice Council further supported the conclusion that his conduct was improper. Consequently, the court exercised its discretion to order that costs be paid by Mr Harker personally, and directed that the judgment be brought to the attention of the Legal...

Court Disposition

Costs order made against Mr Joseph Ross Harker in his personal capacity for improper conduct as executor and attorney.

Orders

  • The cost order made in terms of the judgment of 4 July 2023 shall be paid by Mr Joseph Ross Harker in his personal capacity.
  • The Registrar is directed to bring this judgment to the attention of the Legal Practice Council and the Master of the High Court by furnishing them with a copy thereof. The Registrar shall confirm compliance with this order by advising the parties in writing and placing written confirmation in the court file.