Annett v Nurmela

[2019] NZHC 247

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001110

[2019] NZHC 247

UNDER

the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of an appeal against a decision of the Family Court at Auckland

BETWEEN

PAULINE GLYNN ANNETT
Appellant

AND

PENTTI JUHANI NURMELA

First Respondent

PENTTI JUHANI NURMELA as

administrator in the estate of Antti Matias Nurmela

Second Respondent

Hearing:	On the papers
Judgment:	25 February 2019

COSTS JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 25 February 2019 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Stainton Chellow Solicitors, Auckland. Cinque Oakley Senior, Australia.

SL Robertson QC, Auckland.

ANNETT v NURMELA [2019] NZHC 247 [25 February 2019]

[1]    Ms Pauline Annett sought 90 percent of Mr Andy Nurmela’s estate— approximately $1.26 million—under the Law Reform (Testamentary Promises) Act 1949. Judge L de Jong upheld Ms Annett’s claim, but only to the value of $25,000. Ms Annett appealed. I allowed the appeal, but only to the value of $75,000. Ms Annett seeks 2B costs.

[2]    The respondent, Mr Peter Nurmela—Andy’s brother—contends he should have costs. Or, these should lie where they fall. Mr Nurmela relies on his District Court settlement offers.1 Mr Nurmela initially offered Ms Annett $50,000, then

$100,000. He did so after the evidence had been filed in the District Court, but before the hearing in that Court.2

[3]    Ms Annett contends these should not affect costs because they lapsed well before the hearing, and she acted reasonably in pursuing a claim. Ms Annett also highlights her appellate success, hence presumptive entitlement to costs.

[4]    Ms Annett would ordinarily be entitled to costs for the simple reason she won. However, her appellate claim was for $700,000. She received $75,000, just over a tenth of that. I considered Ms Annett’s claim “unrealistic”, a view which endures.3 And, Mr Nurmela’s revised offer was $25,000 more than what Ms Annett was awarded on appeal. Given all this, costs should lie where they fall.

[5]    For completeness, Thompson v Thompson is distinguishable.4 In that case, the Court of Appeal declined to increase the successful party’s costs because their settlement offer had lapsed. But, that Court did not hold a lapsed settlement offer irrelevant to the question of costs.

1      Costs apparently remain unresolved in that Court.

2      The offers were made in May and June 2017. The revised one lapsed July 2017. Judge de Jong heard the case in February 2018.

3      Annett v Nurmela [2018] NZHC 2841 at [46].

4      Thompson v Thompson [2014] NZCA 247.

[6]Again, costs lie where they fall.

……………………………..

Downs J