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Court rules in favour of rest home

MATT NIPPERT
Last updated 11:34 03/12/2013

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A rest home has been awarded indemnity costs after a court ruled the son of a late client made "flimsy" allegations that poor care led to his father's death.

Bupa Care Services, which operates the Kauri Coast Rest Home in Dargaville, initially sought to recover $51,759 in arrears from the estate of their late client Gordon Gillibrand who lived at the facility from May 2003 until April 2011.

Christian Gillibrand, the client's son, was appointed executor of his father's estate and fought the recovery action in the High Court at Whangarei.

Bupa in turn launched legal action to remove Gillibrand Jr as executor, claiming a conflict of interest existed as his family trust owed his father's estate $355,000.

Earlier this year Justice Paul Heath suggested that the application had some weight, noting: "Gillibrand [Jr], because he holds position as a trustee on both sides of the fence, finds himself in a difficult and conflicted situation."

Negotiations between the parties broke down, and Bupa launched recovery action.

Justice Health, in a just-released ruling on costs, said: "Not only did [Gillibrand Jr] contend he was able to execute his office appropriately, but he made serious (and inflammatory) allegations in relation to Bupa's conduct in entering into the contract for care with his late father and acts and omissions which allegedly caused his father's death."

Bupa is separately pursuing a complaint about the conduct of Gillibrand Jr's lawyers, Andrew Holdgate and George Swanpoel, under the Lawyers and Conveyancers Act.

Justice Heath said he had: "Expressed my views to Mr Holgate about the nature of some of the allegations and correspondence in strong terms."

Justice Heath awarded indemnity costs against Gillibrand Jr, noting the allegations Bupa had caused his father's death were baseless.

"The allegations were based (initially) on speculation and (later) on flimsy evidence," the judge said.

"The evidence went nowhere near creating a foundation for the serious allegation that the standard of Bupa's care has caused Mr Gillibrand Sr's death.

"The nature of that allegation necessarily required Bupa to respond and, in doing so, to incur costs far in excess of those that one would ordinarily expect to enforce a debt of just over $50,000."

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- Fairfax Media

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