Ball v Saint - [2022] NZHC 3607

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1876

[2022] NZHC 3607

IN THE MATTER OF an application for probate in solemn form under Part 18 of the High Court Rules 2016

IN THE MATTER OF

of JOHN ELLIOTT LAWFORD, of

Auckland, Retired, Deceased

BETWEEN

DENISE JOY BALL, TIMOTHY JOHN LEWIS and ROBERT McDOUGALL FERRIER

Plaintiffs

AND

BELINDA BEVERLEY GWENDOLEN SAINT

First Defendant

JACK LEE PORUS and DAVID LUNNY
Second Defendants

MYLES CURLING LAWFORD

Third Defendant

Hearing: 22 November 2022

Appearances:

S Grant for the plaintiffs

A McDonald for the first defendant

Judgment:

22 December 2022

JUDGMENT OF ROBINSON J

[Application for Leave to Apply for Security for Costs]

This judgment was delivered by me on 22 December 2022 at 3:30pm

pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel: AJO Legal, Auckland; Hesketh Henry, Auckland; Glaister Ennor, Auckland; Lee Salmon Long, Auckland; Gregory Simon Law, Auckland; S Grant, Auckland; V Bruton KC, Auckland; A McDonald, Auckland; D Chambers KC, Auckland

BALL v SAINT [2022] NZHC 3607 [22 December 2022]

Introduction and background

[1] The plaintiffs apply for probate in solemn form in respect of a will dated 18 April 2007 executed by John Elliott Lawford (Mr Lawford) (2017 will). The first defendant is defending the plaintiffs’ claim and pursues counterclaims. She alleges that the 2017 will is invalid because Mr Lawford lacked testamentary capacity and/or was unduly influenced by the second- and/or third-named plaintiff(s) when he executed it. She seeks an order that the second defendants be granted probate in respect of Mr Lawford’s penultimate will which he executed on 6 November 2013.

[2] On 12 May 2021 Whata J set the matter down for a seven-day trial.1 That trial commenced on 30 May 2022. After seven days it was adjourned part-heard. It will recommence for a further ten days on Monday, 13 February 2023.

[3] In the interim, the plaintiffs seek leave to apply for an order that the first defendant provide security for costs in the form of a mortgage against her otherwise unencumbered property to secure her potential liability to the plaintiffs for costs of up to $1 million.

[4] The plaintiffs submit that the adjournment and extension of the trial amount to a material change of circumstances that increases the likelihood the first defendant will be unable to meet a costs award against her if she is unsuccessful. The plaintiffs’ concerns are exacerbated by their belief that the first defendant will be liable for increased or indemnity costs. They say the adjournment and extra trial time is required only because of the first defendant’s approach to the case. In particular, the plaintiffs say the first defendant’s cross-examination has focused on matters that are irrelevant or of limited relevance.

[5] In a results judgment dated 16 December 2022 I declined the plaintiffs’ application for leave. These are the reasons why.

1 Ball v Saint HC Auckland CIV-2020-404-1876, 12 May 2021 (Minute of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ball v Saint

Details

AGLC: Ball v Saint [2022] NZHC 3607
Case: [2022] NZHC 3607
Decision Date: 22 December 2022

CaseChat Overview and Summary

Denise Joy Ball, Timothy John Lewis, and Robert McDougall Ferrier applied for leave to apply for security for costs against Belinda Beverley Gwendolen Saint who is defending the grant of a will dated 18 April 2007. Ms Saint is also pursuing counterclaims against the plaintiffs, alleging that the will is invalid because the deceased lacked testamentary capacity and/or was unduly influenced by the plaintiffs when he executed it. The plaintiffs’ application for leave to apply for security for costs was declined by Robinson J. The Court found that the application for leave was untimely and that the plaintiffs had not shown that it was in the interests of justice to grant leave at that stage. The Court also noted that the first defendant’s financial circumstances did not suggest that she would be unable to meet a costs award if she were unsuccessful. The Court further observed that the first defendant’s counterclaims had reasonable prospects of success and that, in any event, costs may not necessarily follow the event in a case of this sort. The first defendant was entitled to costs, to be calculated on a 2B basis.

The Court considered the relevant legal principles, including the requirements for obtaining leave to apply for security for costs and the factors that the Court must consider in determining whether to grant leave. The Court also considered the submissions of counsel for both parties on the jurisdictional issue of whether the Court has the power to order security for costs against a defendant who is also pursuing counterclaims. The Court found that the Court does have jurisdiction to order security for costs in such cases, but that the Court should consider the substantive position being taken by the party resisting probate, rather than whether that party is nominally a plaintiff or a defendant. The Court noted that the fact that the first defendant’s affirmative defences and counterclaims are based on the same factual allegations may be relevant to whether a Court should order security for costs, not whether it has jurisdiction to do so.

Orders