Andrews v Andrews

[2022] NZHC 1663

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001221

[2022] NZHC 1663

UNDER

Part 18 of the High Court Rules 2016

IN THE MATTER OF

An application under the Trusts Act 2019

BETWEEN

STEPHEN ROBERT ANDREWS

Plaintiff

AND

RICHARD JOHN ANDREWS, EVAN WILLIAM ANDREWS and DAVID

BRUCE BELL as trustees of the estate of ROBYN MARGARET ANDREWS

Defendants

Hearing:	On the papers
Counsel:	D M O’Neill for Plaintiff A C Sorrell for Defendant
Judgment:	14 July 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

[Costs]

This judgment was delivered by Associate Judge Andrew on 14 July 2022 at 1.00 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date…………………………

ANDREWS v ANDREWS [2022] NZHC 1663 [14 July 2022]

Introduction

[1]                 In my judgment of 13 June 2022,1 I granted the defendants’ application for summary judgment and strike out. I concluded that Stephen, the plaintiff, does not have standing to bring the proceedings and they cannot succeed.

[2]The parties have been unable to agree on costs.

[3]                 The Court has received memoranda from the parties. This judgment contains my decision on costs.

Relevant legal principles

[4]Ultimately, costs are at the discretion of the Court.

[5]                 In accordance with r 14.6, the Court may order indemnity costs if the party has acted vexatiously, frivolously, improperly or unnecessarily in commencing or continuing a proceeding or a step in the proceedings.

[6]                 Increased costs may be ordered where there has been a failure by the paying party to act reasonably.2

Discussion

[7]I reject the claim by the defendants for indemnity costs.

[8]                 I find that there should be an order for increased costs, namely a 50 per cent uplift on a 2B calculation. The threshold of the failure to act reasonably has been made out. As I noted in my judgment of 13 June 2022,3 the first cause of action was clearly res judicata.4 There was a clear admission from Stephen that he was not a beneficiary,5 and no evidence before the Court that Antares consented to being joined as a plaintiff.6

1      Andrews v Andrews [2022] NZHC 1380.

2      Bradbury v Westpac Banking Corp [2009] 3 NZLR 400, (2009) 19 PRNZ 305.

3      Andrews v Andrews, above n 1.

4      Andrews v Andrews, above n 1, at [37].

5      Andrews v Andrews, above n 1, at [35].

6      Andrews v Andrews, above n 1, at [39].

[9]                 I reject the plaintiff’s complaints about the defendants’ claim for item 22 and item 9. Both these items are legitimate costs that can be claimed in a proceeding for which there were no reasonable grounds to have brought in the first instance. I also allow the filing fee for the amended statement of defence.

[10]              I approve the 2B calculations set out in the schedule to the defendants’ memorandum. There is to be a 50 per cent uplift on scale costs for the period following 7 December 2021 (i.e. $11,830.50). That translates to an uplift of $5,915.25.

[11]              In reaching that conclusion, I have adopted the steps set out in Holdfast NZ Ltd v Selleys Pty Ltd.7

Result

I order that the plaintiff is to pay costs to the defendants on a 2B basis, as set out in the schedule attached to the defendants’ memorandum of 21 June 2022, together with a 50 per cent uplift on costs for the period following 7 December 2021 (namely

$5,915.25). I also approve the disbursements sought as set out in the schedule to the defendants’ memorandum.

Associate Judge P J Andrew

7      Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ, 897.