Baker v Waimakuku Whanau Trust Board Incorporated

[2014] NZHC 686

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-000581 [2014] NZHC 686

BETWEEN

EDWARD HENRY BAKER and

WHAKAWE CHARLES RAMEKA as trustees of THE THOMAS BAKER WHANAU TRUST

Applicants

AND

WAIMAKUKU WHANAU TRUST BOARD INCORPORATED Respondent

On papers
Judgment:	7 April 2014

RESERVED JUDGMENT OF DOBSON J (Costs)

[1]      This  judgment  addresses  an  outstanding  application  on  behalf  of  the applicants for a costs order in relation to the substantive hearing against the respondent.  I regret the delay in being able to address the matter.

[2]      In  the  substantive  judgment  dated  27 September  2013,  I  confirmed  the entitlement of the present trustees to recover the cost of the proceedings out of the fund.1   I dismissed the prospect of any order that the fund make a contribution to the costs incurred on behalf of the respondent.

[3]      I have dealt separately with an application for costs by the amicus.2

[4]      Costs as between the applicant and the respondent for numerous interlocutory steps were determined in a judgment of Associate Judge Gendall on 13 October

1      Baker v Waimakuku Whanau Trust Board Inc [2013] NZHC 2530 at [120]–[123].

2      Baker v Waimakuku Whanau Trust Board Inc [2014] NZHC 255.

BAKER v WAIMAKUKU WHANAU TRUST BOARD INC [2014] NZHC 686 [7 April 2014]

2011.3  That judgment ordered costs against the respondent and Mr Nigel Baker, with a 50 per cent uplift on category 2B costs.

[5]      In respect of the substantive aspect of the proceedings, the applicants seek an order for increased costs against the respondent and Mr Nigel Baker jointly and severally.   The application is made on the basis that the respondent advanced arguments that were not constructive to the process of settling a trust deed, and that wide-ranging, repetitive and irrelevant material was filed that contributed unnecessarily to the time and expense of the proceedings.  Ultimately, the applicants blame the respondent’s conduct for unnecessarily delaying the adoption of an appropriate trust deed for three years, and having imposed unnecessary financial burden on the trust fund.

[6]      In submissions on various post-judgment issues, Mr Nee Harland’s stance on behalf  of  the  respondent  and  Mr Nigel  Baker  remains  the  same  as  it  has  been throughout: namely, that the respondent and Mr Nigel Baker ought not to have been removed from control of the trust fund as they were by Durie J’s decisions,4 and that the class of beneficiaries has been interpreted too widely to the extent that it includes at least some of those supporting the trust’s present administration.   In addition, Mr Nee  Harland  used  these  proceedings  as  a  forum  in  which  to  attack  the competence  of  one  of  the  interim  trustees,  and  the  lineage  of  another  as  not qualifying within the whanau of Thomas Baker.   In short, there should not be any

costs liability ordered against the respondent, because it is in the right.

[7]      I do  not  accept  Mr Bate’s  submission  as  to  the  application  of  the  usual presumption that a party that “fails” with respect to a proceeding should pay costs to the party who “succeeds”.  Applications such as the present under the Trustee Act

1956 do not sit comfortably within the usual range of competing interests in civil litigation.

[8]      In a context such as the present, a contradictor serves a useful, and often constructive, purpose.  That can be the case, notwithstanding the involvement of an

3      Baker v Waimakuku Whanau Trust Board Inc HC Napier CIV-2010-441-581, 13 October 2011.

4      Chisholm v Waimakuku Whanau Trust Board Inc HC Napier CP27/00, 29 August 2005 and

1 May 2006.

amicus.   Therefore I would not be prepared to order costs against the respondent merely on the basis that the majority of its arguments were unsuccessful.

[9]      However, as  I recognised in determining costs on the  application by the amicus, meritless and irrelevant matters pursued on behalf of the respondent substantially increased the work required on behalf of the applicants.   Given the view I take, it is unnecessary to ask Mr Bate to attempt a break-down of the costs actually incurred which he would claim would not have been required but for the meritless and irrelevant points taken on behalf of the respondent.  I have reviewed the conduct of the hearing and the issues that were required to be addressed because of respondent initiatives.   I consider the appropriate outcome is to make an award reflecting my view of the additional costs required in relation to the substantive hearing because of those matters.

[10]     The outcome is that the total costs of the proceedings thus far defrayed out of the fund will be reimbursed to the extent that I am satisfied the costs were unnecessarily incurred because of initiatives on behalf of the respondent.  Inevitably, that assessment is appropriately done on a conservative basis.

[11]     I fix that sum at $20,000.

[12]     In dealing with the costs application on behalf of the amicus, I made the following observation in relation to the position of Mr Nigel Baker:5

Before leaving the issue of the liability of the respondent, I note that Mr Nee Harland’s repeated insistence that his instructions come only from the respondent trust, and not from the individual most closely associated with those instructions, namely Mr Nigel Baker, is disingenuous.  The majority of the initiatives pursued in these proceedings by Mr Nee Harland were to address concerns with which Mr Nigel Baker was, in his personal capacity, very much identified.  It was apparent from the conduct of the respondent’s case throughout that Mr Nigel Baker, at least substantially, if not entirely, controlled the instructions given  to Mr  Nee  Harland.   A number  of the collateral  issues  raised  by  Mr  Nee  Harland  were  to  advance  Mr  Nigel Baker’s personal interests.

[13]     The same considerations apply here.   The present order for costs is, in the first instance, made against the respondent.   However, as I foreshadowed in my

5      Baker v Waimakuku Whanau Trust Board Inc, above n 2, at [13].

judgment on costs for the amicus, I would entertain an application to extend liability for the costs order to Mr Nigel Baker in his personal capacity, if the amount is not paid by the respondent.

Dobson J

Solicitors:

Hansen Bate, Hastings for applicants

Te Nahu Lovell & Co, Rotorua for respondent

Crown Law, Wellington for amicus curiae

Counsel:

P A Nee Harland, Havelock North