Ipsofactoj.com: International Cases [2001] Part 4 Case 12 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Gore

- vs -

Estate of RE Gore

(by W Gallaway, WR Gore, and G Gore as Trustees and Executors of the estate)

TIPPING J

McGECHAN J

SALMON J

12 MARCH 2001


Judgment

Salmon J

(delivered the judgment of the court)

INTRODUCTION

  1. This appeal is against the judgment of Chisholm J in the High Court at Dunedin, dismissing a claim for further provision out of the estate of Rose Eileen Gore brought under s 4 of the Family Protection Act 1955. The appellant, Vance, is the son of Rose. The second respondents are his children. The third respondents are his sister, the only other child of Rose, and her children. The second respondents have cross-appealed against the refusal by the Judge of an award of costs in their favour. Because a substantial portion of the assets of the estate had been distributed prior to the statement of claim being filed, the proceedings also sought tracing orders.

  2. Section 4(1) of the Act provides:

    4.

    Claims Against Estate Of Deceased Person For Maintenance

    (1)

    Notwithstanding anything to the contrary in [the Administration Act 1969], if any person (in this Act referred to as the deceased) dies, whether testate or intestate, and in terms of his will or as a result of his intestacy adequate provision is not available from his estate for the proper maintenance and support thereafter of the persons by whom or on whose behalf application may be made under this Act as aforesaid, the Court may, at its discretion on application so made, order that such provision as the Court thinks fit shall be made out of the estate of the deceased for all or any of those persons.

  3. The principles to be applied in the case of claims pursuant to s 4 have recently been restated by this Court in Williams v Aucutt [2000] 2 NZLR 479. The Court stated the test as whether adequate provision had been made by the testatrix for the proper maintenance and support of the claimant, taking into account the claimant’s means and obligations and all other relevant circumstances. "Support" is a wider term than maintenance, and means "sustaining, providing comfort". Moral and ethical considerations are to be taken into account in determining the scope of the duty, including recognition of belonging to the family, and of having been an important part of the overall life the deceased.

    BACKGROUND

  4. Rose Gore was 81 years of age when she died on 3 October 1998. She and her husband had divorced many years previously. Her husband died on 23 January 2000. There were two children of the marriage, Vance, who is now aged 60, and his sister, Gytha, who is 55. Each of Rose’s children have two children. Vance’s children, Dale who is 36 and Wayne who is 34, have actively opposed their father’s application. Gytha’s two children, Michael and Vanessa who are adult, but still studying at university, have not taken an active part in the proceedings.

  5. Rose’s father was reasonably well off. During his lifetime he settled two trusts for the benefit of Rose, her sister Rena and their children. In each case the sisters were entitled to the income from their half share for their lifetimes. In each case a power of appointment was given to the daughter, enabling a nomination of who would be entitled to the capital. In default of nomination, the capital was to go to their children.

  6. In the case of the first of the trusts, Rose entered into a deed of appointment, surrender and release whereby Gytha was appointed as beneficiary of the capital and, in consideration of her mother’s surrender of her life interest, vested a half share of that capital in Rose. Rose and her daughter each received approximately $97,000. Vance received nothing, and indeed was not aware of the distribution until later.

  7. In respect of the second trust, Rose’s will exercised the power of appointment in favour of Gytha, with the result that she received approximately $111,000 from that trust. Again Vance received nothing.

  8. The immediately available assets in the estate were distributed very shortly after probate was obtained. The will left $10,000 each to Gytha’s children. Those legacies have been paid and are not challenged by the plaintiff. Gytha received personal items. The residuary estate was divided into four equal shares. Gytha received two shares and Dale and Wayne the other two. Under an interim distribution Gytha has received $44,000 and Dale and Wayne $22,000 each.

  9. Rose’s father died in 1972. His widow, who was in her late 90’s at the time of Rose’s death, had a life interest in that estate with Rose having a vested interest in the capital, the value of which was approximately $170,000. Under the terms of Rose’s will Gytha receives half of that sum and Dale and Wayne receive a quarter each. The widow has now died enabling final distribution of Rose’s estate subject to the outcome of this appeal. A memorandum as to the net value of the estate as at 12 February 2001 shows an estimated balance available for final distribution of just under $149,000. Thus, in terms of the will, Gytha will on final distribution receive approximately a further $74,500, and Dale and Wayne will receive a further $37,250 each.

  10. As indicated above, Vance and Gytha’s father has died. We were advised from the bar that he had left his estate to his second wife.

  11. Vance and Gytha were brought up in Dunedin. They each received a good education. After leaving school Vance worked for some four years in his father’s jewellery business, but left when he was 21 to pursue a farming career. He married soon thereafter and his two children were born in 1965 and 1967.

  12. In 1967 Vance was successful in securing a Lands and Survey Ballot farm near Taupo. Rose and her husband were frequent visitors, and assisted with farming operations and money towards farming costs.

  13. Vance and his wife separated in 1973. As a result of litigation Vance obtained custody of both his children. His daughter Dale remained in her father’s custody until she left home after completing her secondary education. Wayne lived with his father for only a brief period and then lived with his mother until he was 12. He then stayed with Rose in Dunedin for most of the period of his secondary schooling. Rose met the school fees, but there was a contribution provided by Vance as a result of maintenance paid to his wife.

  14. Both Dale and Wayne claim that their father took little interest in them, particularly from the time of his remarriage in 1981. Both had a close relationship with their grandmother and grandfather. In the early 1980s Vance’s relationship with his mother also deteriorated. Evidence of that deterioration can be found in the provision made for Vance in Rose’s wills and in correspondence.

  15. Rose had loaned Vance $20,000 in 1981. By 1983 the amount owing had been reduced to $15,000. Rose wrote to Vance requesting him to make further payments. Vance replied that he was not in a financial position to make any further payments. Rose wrote again asking whether he would be making a payment of $3,000 the following March. Vance responded in a letter which included the following passage:

    Your visit and your last two letters have made me feel you wish our relationship to be on just a business footing. I will adhere to your wishes and see that your interest and money are repaid as I have mentioned above. It is no longer any use longing and needing a close and meaningful relationship with you. I have told Ava [his second wife] not to write to you. She has written so you would feel part of what is happening up here hoping to bring us all together as a caring and loving family.

  16. Rose and her husband divorced in 1980. In 1993 Rose was hospitalised. It seems that she was in poor health generally from then until her death.

  17. Vance sold his Taupo farm for $1.15 m (excluding livestock). In November 1994 he purchased a 76 hectare lifestyle farm at Katikati. The evidence is that that farm operates at a loss. At the date of his mother’s death Vance deposed to having net assets of around $950,000.

  18. Gytha is divorced. She is employed by Air New Zealand on a gross salary of $26,000 per annum. She has no tertiary qualifications and is concerned about the security of her employment. Her children, Michael and Vanessa, are living at home and attending university. She has bank deposits as a result of the distributions from the trusts and the estate of approximately $238,000, jewellery valued at somewhere between $10,000 and $20,000 and a motor car worth about $6,000. Her Dunedin house property, valued at approximately $125,000, has been transferred to a trust for the benefit of her children.

  19. Dale is married and has a young child. She and her husband have net assets of approximately $156,000 and a combined income of approximately $44,500.

  20. Wayne is employed as an accountant at a salary of $60,000 per annum. He has no children. His second wife also works but her income has not been disclosed. They have an equity in their home of $220,000. They own a small boat and a car as well as personal possessions. Wayne and his mother are registered as proprietors of a property at Lake Hayes. His mother has filed an affidavit saying that Wayne has no interest in the property and has agreed to transfer it into her name. This has not yet been done.

  21. Vance and Gytha received financial help from their parents during their life-time. However, the assistance given to Vance was considerably greater than that given to Gytha and came at a crucial time in the development of his farm.

    ROSE'S WILLS

  22. Between 1958 and her death Rose made 21 wills. Vance and Gytha were treated equally until 1978. From 1980 Vance was largely excluded, although some provision was made for him from time to time.

  23. The following paragraphs from the judgment in the High Court set out the evidence relating to Vance’s exclusion from his mother’s testamentary dispositions.

    [22]

    Evidence relating to Rose’s reasons for her testamentary dispositions comes from a number of sources including: the written reasons signed by Rose; affidavits of those involved in the preparation of wills, namely, Mr I W Gallaway and A N Mowatt, both partners in Gallaway Haggitt Sinclair at relevant times, and Mr D J Wilson who was a senior trust officer with Trustees Executors & Agency Company of New Zealand Ltd; and Wayne’s affidavit. Given Vance’s allegations that Wayne’s evidence is unreliable, I have concentrated on the reasons expressed in documents signed by Rose and the three affidavits sworn by those involved in drafting her wills.

    [23]

    In 1990 Rose consulted Mr Gallaway in connection with the winding up of the R T Simpson No. 1 trust and the possible winding up of the No. 2 trust. In both instances it was Rose’s intention to exercise her power of appointment in a manner that would benefit Gytha and exclude Vance. Mr Gallaway understood from Rose that she was adopting that approach for two reasons: first, Vance had already received direct financial assistance together with indirect assistance towards his children, and secondly, he had distanced himself from her.

    [24]

    Mr Wilson was involved with Rose’s wills from 1991 until her second to last will in June 1994. He was always concerned about the possible consequences of totally excluding Vance and attempted to discuss the situation with Rose each time she revised her will but she appeared to be reluctant to discuss her reasons. His evidence was that basically Rose said to him the family would know why her will was the way it was and he gained the overall impression that she was not making any provision for Vance because he was helped out when he bought his farm and Rose had helped his children.

    [25]

    When Mr Wilson took instructions to revise Rose’s will of 12 May 1992 he noted:

    Mr Vance Charles Gore has been excluded from being a beneficiary in favour of his children due to his own personal wealth and financial situation.

    The following year Rose gave him the following handwritten explanation when she signed her will dated 4 March 1993:

    Why I left nothing to my son Vance Charles Gore.

    I have not seen my Son to speak to for many years. He has been in Dunedin a number of times but never even bothered to ring me, which made me sad.

    Wayne (Vances Son) has been more of a son to me than Vance ever was. My place was home to Wayne, sent him to Boarding School and later on to University. His father had nothing to do with him even when I rang Vance to have Wayne up at the farm for his School holidays. Poor Wayne, he wanted to go and see Daddy so much.

    Vance has had his share of money over the years when I helped financially for him to buy the farm, equipment, stock, new wool shed, car and land-rover, always something. Also sent Elsie, Vances house-keeper, her wages every month for many years.

    Dale and Wayne up to the time they were five years old spent more time with me than their father. Once they commenced school, holidays encluding [sic] Christmas, they came to stay with me. All expenses were met by myself, this encluding [sic]air fares.

    In later years Vance borrowed $20,000-00 from me to pay his income-tax, he was to pay back this amount in a stipulated time. A number of years later this request was not met and only half had been paid to me, I then decided to make the remainder owing, a gift.

    Vance also tried to get a loan from the Trust Fund, unknown to me.

    Vance refused to pay for a Church Wedding when Dale got married. I did help out.

    Over the years I have taken great interest in Dale and Wayne and helped financially, this elevating the finical[sic] responsibility from Vance.

    It is my wish to see Wayne and Dale both get a chance of receiving their share which their father Vance has already received over the years, and it is in my opinion that they will get no support from their father as has been the case up to date.

    When Mr Wilson took instructions for the will dated 7 March 1994 he recorded that Rose was worried that her two grandchildren, Wayne and Dale, could miss out under her son’s will as he had remarried for the second time and had little to do with the children of his first marriage.

    [26]

    Rose’s last will of 15 August 1994 was prepared by Mr Mowatt who requested an explanation for the exclusion of Vance when he received instructions. An explanation was not given at the time but when Rose came in to sign the will she handed to him the following statement of reasons:

    I write this in contemplation of my latest Will dated 9th June 1994 but it shall in no way be construed so as to conflict with any of my intentions outlined in the Will.

    My son Vance Charles Gore, has received under my Will a disproportional share of my Estate compared with other family members. This is not an oversight on my part but rather my intention that this be so, for the following reasons:-

    (1)

    My son has remarried into a family of 3 children, this having obvious implications so far as his ability and intention to provide for his own children.

    (2)

    A loan (repayable on demand) was granted to him by myself, and was not paid back when requested. A portion of this loan was subsequently written off by myself.

    (3)

    My son’s ongoing participation in his own children’s lives and financial welfare has been negligible (ie their weddings) and I have no reason to believe this will change.

    (4)

    I have gifted substantial sums of money to my son over the years, to the point that I feel he has already received his inheritance.

    (5)

    Over many visits to Dunedin to visit his father, he has not bothered to contact or maintain any sort of relationship with myself.

    In conclusion I have no ill-feelings toward my son and wish him every happiness in his future endeavours.

    This document is typewritten except for the date of 9 June 1994 which has been inserted in a blank space provided in the typewritten document. It is not disputed that Rose’s signature appears at the foot of the document.

  24. In the case of the final will it seems that the document given to Mr Mowatt had been prepared to accompany an earlier will.

  25. There have been submissions relating to the use of the word "disproportional" in this final document signed by Rose. It has been suggested that the whole document should be regarded with suspicion because of the use of that word. That is because the will leaves nothing to Vance. Our view, however, is that the word has been used misunderstanding its proper meaning. In our view it is used intending to indicate that no provision is made for Vance in the will.

    THE HIGH COURT DECISION

  26. Chisholm J, after setting out the circumstances of the parties and information relating to Rose’s wills and her statements of reasons for excluding Vance, noted that three primary reasons for that exclusion could be identified.

    • The first was her belief that Vance’s children required support because Vance had remarried. His participation in his children’s lives and financial welfare had been negligible and it was unlikely that that situation would change.

    • Secondly, she considered that Vance had already received his inheritance by way of the substantial sums given to him over the years and finally, she believed that he had not maintained a relationship with her.

  27. The judgment then went on to discuss in some detail the support given by Rose during her life-time. The judgment lists what the Judge regarded as a conservative recital of that support. The list includes the gift of a vehicle, a section at Te Anau, payments of money, purchase of livestock, payments of housekeeper’s wages, monetary assistance towards a holiday in the US during 1974 and the advance of $20,000 earlier referred to in this judgment. The Judge also refers to Wayne’s private secondary schooling being funded by Rose. He concludes with the comment that this analysis is conservative and he suspected that the actual level of support was significantly higher. Mr Hassall acknowledged that there was no challenge to those findings of the Judge. The judgment then considered in some detail the question of whether there was a breach of the testator’s moral duty, and concluded that Vance had failed to establish such a breach. Further reference to the judgment in this regard appears later.

    THE ARUGMENTS IN THIS COURT

  28. The points on appeal filed by the appellant ran to some five pages and listed ten grounds. The argument as it was presented in this Court was considerably more limited. It relied upon two principle points. The first related to the two trusts set up by Vance’s grandfather. The submission was that the grandfather intended that the capital of those trusts would go to grandchildren and that Rose had a moral duty to fulfil that intention. Mr Hassall argued that because of the breach of that duty his client should receive from the estate a sum of around $152,000 being the total of a half share of the capital in each of the two trusts.

  29. The second point argued was that Vance was a dutiful son and was entitled to recognition. It was accepted that he could not establish economic need, but it was argued that there had been a breach of the testator’s moral duty to him and that under that head he should have received a sum in the order of $10,000 to $20,000. The total amount claimed, therefore, is around $170,000. The Judge calculated the net value of the estate at around $353,000 including the amount of the capital in the No.2 Trust in respect of which Rose had the power of appointment.

  30. As to the first of the grounds argued, Mr Hassall pointed to evidence of Vance contained in his affidavit in reply. The passage relied on is part of a response to the affidavit filed by Wayne. Wayne’s affidavit referred to a proposal in 1987 that the No.1 Trust should be the subject of a deed of arrangement pursuant to which the funds would be shared between Vance and his children. Vance’s response was in the following terms:

    I confirm that I was distressed when I learned of the proposal by my mother that the distribution to which I felt entitled from the Simpson No.1 Trust should be shared between me and my children. I was aware that it had always been my grandfather’s intention that the proceeds of the two family trusts would go to the grandchildren and not the great-grandchildren.

  31. This it seems is the only evidence upon which Vance can rely to support his submission as to his grandfather’s intention other than the deeds themselves.

  32. Based upon the submission as to intention, Mr Hassall contended that Rose had a moral duty to make good the default that had occurred when the No.1 Trust was brought to an end and to ensure that Vance received the money, which in fact went to her, under the deed of arrangement. Similarly, he argued that in respect of the No 2 Trust Rose had a moral duty to exercise her power of appointment so that he received one half of the capital.

  33. Although it seems that this point was argued in the High Court, it does not seem to have received the emphasis there that it has had in this Court. Presumably as a consequence, the argument is not directly addressed in Chisholm J’s judgment. Indeed, it is only obliquely raised in the points on appeal. The argument requires a careful consideration of the two deeds of trust. The first dated 1 November 1946 is expressed to be in consideration of the settlor’s natural love and affection for his two daughters. The important recital in relation to Rose’s share is as follows:

    (a)

    To pay one half of the income arising from the said trust fund to the said Rose Eileen Gore during her life and after her death to hold one half of the trust fund in trust for her issue as she shall by deed or will appoint and subject to such appointment in trust for all her children living at the death of the settlor or born afterwards who shall attain the age of 21 years in equal shares ....

  34. The No 2 Trust is dated 20 November 1959. It includes a recital to the effect that the settlor is desirous of making provision for his children and his grandchildren. The capital is to be divided into two equal parts. The relevant recital reads:

    .... and to hold the other such part upon trust for such of the children of the said Rose Eileen Gore living at her death as she shall by deed either revocable or irrevocable or by will or codicil appoint and in default of appointment and in so far as such appointment shall not extend upon trust for such of the children of the said Rose Eileen Gore living at her death as shall attain the age of 21 years or marry under that age and if more than one as tenants in common in equal shares ....

  35. It will be seen immediately that Vance’s evidence concerning the No 1 Trust is not correct. That deed refers both to "issue" and to "children". It permits settlement upon "issue", which, given the context, would include great-grandchildren of the settlor. The more important point, however, is that it is not possible to read either of the deeds as expressing an intention that all grandchildren of the settlor will benefit. In each case the deed gives to Rose the right by appointment to determine which of her children, and in the case of the first deed, grandchildren, will benefit. It is only in default of appointment that the deed provides for equal sharing amongst Rose’s children. It is, therefore, not possible to read into either of the deeds an intention on the part of the settlor that both Vance and Gytha’s children should benefit let alone equally. Furthermore, there is no objective support for Vance’s assertion that, in spite of the terms of the deeds, this is what his grandfather intended. That being the case, there can be no moral duty on the part of Rose arising in the manner argued by Mr Hassall.

  36. A bare power of appointment such as that given by the trusts in this case is by its very nature discretionary. As is noted in Hanbury and Martin, Modern Equity (15th ed) 1997, p 167, such powers make it possible for the donee of the power to take into consideration circumstances existing at the date of appointment which the settlor could not have foreseen. Objects of a power do not own anything unless and until the donee makes an appointment in their favour or until the default provisions become operative. This may be contrasted with the position under a fixed trust where the Court can compel the exercise of the trust if the trustees fail to act.

  37. That is not to say, of course, that the deeds and their provisions should not be considered as a part of the background to whether Rose was in breach of any moral duty she had at the time she came to consider the dispositions to be made by her will.

  38. Mr Hassall also argued that the action taken by Rose in relation to the deed of appointment, surrender and release of the No.1 Trust was of doubtful legality. We do not accept that. Rose was entitled to exercise the power of appointment and then with the appointee, to bring the deed of settlement to an end. She was entitled in consideration of the surrender of her life interest to arrange that she should receive a share of the capital. Indeed, Vance sought legal advice when he first learned of this document. He says in his affidavit that in the light of that advice —

    .... I understood there was nothing much that could be done because it was a discretionary trust and I could not challenge the payment.

  39. Finally, under this head, it is significant that Mr Hassall was not able to refer the Court to any authority in support of the proposition that some moral duty existed in relation to the exercise of the power of appointment.

  40. The second main point argued on behalf of the appellant was that the testator had failed in her ethical and moral duty in leaving nothing to her son in her will. Chisholm J dealt with the question of moral duty at some length in his judgment. He considered Vance’s financial position, he acknowledged the submission on behalf of Vance that absence of necessitous circumstances is not necessarily fatal to an order. He noted the size of the estate and the competing claims. He noted the facts concerning Vance’s relationships with his children, his mother and his father and he concluded in the following way:

    So I come back to the primary question. Has Rose breached her moral duty towards Vance? As already noted it is insufficient for the plaintiff to simply demonstrate unfairness and there is no presumption of equality between siblings. A number of inter-related factors count against the plaintiff’s claim. First, as Rose would have known, Vance was in a very comfortable financial situation which was attributable, at least to some extent, to her generosity during her lifetime. Secondly, Rose was entitled to recognise and accommodate strong competing claims by her daughter Gytha and by her two grandchildren, Dale and Wayne, none of whom were in a strong financial position by comparison with Vance. Thirdly, although there is no suggestion of disqualifying conduct in terms of s5 of the Family Protection Act, Rose was entitled to take into account the history of her relationship with Vance compared with the history of her relationship with Gytha, Dale and Wayne. Finally, even taking into account the power of appointment conferred by the R T Simpson No. 2 Trust, there was a relatively small fund available to meet the competing claims. Even taking the most liberal approach to ethical and moral considerations, I am not persuaded that in all the circumstances a wise and just testatrix would have arrived at a different result to that reflected by Rose’s last will.

  41. The Judge was, of course, exercising a discretion and it is not appropriate for this Court to substitute its own discretion for that of the trial Judge unless satisfied that the exercise of that discretion was based on an error of principle or was plainly wrong on the facts.

  42. The written submissions on appeal attack the exercise of discretion in a number of ways. The first three grounds relate to the statement of reasons made available by Rose at the time of execution of her last will. The Judge is alleged to have failed to pay sufficient regard to manifest errors and unwarranted assertions and assumptions in those reasons. It is said that he should have drawn an inference that the content of the statement of reasons was likely to have been significantly influenced by Wayne. In our view the Judge took an appropriately broad-brush approach to the statement of reasons. He did not accept them as conclusive evidence of the assertions made, rather he looked at the evidence as a whole to see whether Rose’s attitude was justified. He correctly identified the three principal reasons arising from the document signed by Rose and referred to earlier in this judgment.

  43. The Judge then examined the question of the support that Vance had received during Rose’s lifetime. He noted first that apart from forgiveness of a debt, Vance had originally deposed that his mother had made no other gifts to him. Other evidence, however, made it clear that Vance had received substantial benefits. What is more important, these gifts and benefits were provided at a crucial time in Vance’s farming career. He received money which helped him to purchase land and he received gifts of stock and equipment. There was considerable assistance financial and otherwise, provided by Rose to Wayne during Wayne’s school years. Rose paid for a housekeeper for Vance for the best part of a year. The Judge concluded that even on the conservative approach adopted by him Vance received very considerable support from his mother during her lifetime and that that support came at crucial times and gave Vance a start in life which left him in a very comfortable situation at the date of his mother’s death. The Judge was satisfied that Rose was extremely generous in the lifetime support of her son. Nothing we have heard in this Court persuades us that those conclusions were wrong.

  44. Submissions from the respondent make it apparent that not only did Vance receive support from his mother, but he also received financial support from his mother’s father and from his own father. The significant financial support he received from his grandfather is relevant when considering Rose’s appointments under the two deeds. As to the other reasons identified in Rose’s statements, there is no doubt that Vance’s relationship with his mother broke down in the early 1980s and was never restored. Vance must at least share responsibility for this. Given the history of the relationship of Vance to his children and his history of support, or rather lack of it, for his children, his mother’s conclusions as to the likelihood of him providing support in the future seem reasonable. It is clear from the evidence that Rose had a very close relationship with her grandchildren, Dale and Wayne, particularly Wayne. It was a much closer relationship than is often the case with grandchildren. That coupled with the breakdown in the relationship with Vance is an added justification for deciding to favour the grandchildren rather than Vance.

  45. The submissions on behalf of the appellant challenged the finding that the deceased was justified in viewing the claims of Wayne and Dale as superior to the claim of the appellant. It is not really necessary to go into detail. Vance at the age of 60 has assets valued at around $1 m. His children, who are in their 30s, are not nearly as well off. The estate is not a large one and the amount that each of them is receiving is quite small, particularly when judged against the value of Vance’s assets.

  46. We are far from satisfied that the Judge was wrong in the exercise of his discretion.

    COSTS

  47. Mr Hassall argued that the Judge was wrong to award costs in favour of Gytha. The only point that he took under this head was that Gytha had failed to provide details of life-time support that she had received from Rose. Those details have since been supplied in a statement to this Court. Mr Hassall submitted that that failure justified a refusal of costs to Gytha. We do not agree. The primary factor that persuaded the Judge to award costs in Gytha’s favour was that she had made an offer of settlement of some $50,000 which was rejected. In those circumstances the award of costs in her favour was entirely appropriate.

  48. Wayne and Dale cross appeal against the Judge’s refusal to award them costs. Mr Fulton acknowledged that it was not uncommon in family protection litigation to let costs lie where they fall. He submitted, however, that Wayne and Dale had been put to additional costs through Vance’s failure to accept the offer made by his sister and that the Judge had not given sufficient consideration to that. Chisholm J gave a separate judgment as to costs. He identified a number of factors which in his view counted against the costs claim by Dale and Wayne. Perhaps the most important was that they could not rely on the settlement offer made by Gytha. That is an appropriate finding. The Judge was also somewhat critical of parts of Wayne’s affidavit evidence and he considered that the plaintiff had more justification for testing the testamentary provision in favour of his own children than that in favour of his sister. We consider that there was a sufficient basis for these findings by the Judge. It is only in very rare cases that this Court will upset the exercise of discretion in relation to costs and we are not satisfied that this is one of those cases. Accordingly, the costs appeal is dismissed.

    COSTS IN THIS COURT

  49. The respondents are entitled to costs, the principal appeal having failed. The appellant is to pay the sum of $4,000 to the second respondents and the same amount to the third respondents, together with reasonable accommodation and travelling expenses, to be fixed if necessary, by the Registrar.


Cases

Williams v Aucutt [2000] 2 NZLR 479

Legislations

Family Protection Act 1955, s.4

Authors and other references

Hanbury and Martin, Modern Equity (15th ed) 1997

Representations

A L Hassall QC and G L Wilkin for Appellant in CA99/00 and Respondent in CA142/00 (instructed by Almao Kellaway, Hamilton).
H Fulton for Second Respondents in CA99/00 and Appellants in CA142/00 (instructed by Armstrong Murray, Takapuna).
C B Littlewood for Third Respondent in CA99/00 (instructed by Anderson Lloyd, Dunedin).


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