Banicevich v Gunson

[2007] NZCA 29

IN THE COURT OF APPEAL OF NEW ZEALAND

CA55/05
[2007] NZCA 29

IN THE MATTER OF     the Estate of Vjerkoslav Ivan Banicevich

BETWEENCAMERON BANICEVICH AND DENE BANICEVICH

Appellants

ANDCRAIG WESLEY GUNSON  AND JOCELYN MARY IMMS, AS TRUSTEES OF THE ESTATE OF VJERKOSLAV IVAN BANICEVICH

First Respondents

ANDJOCELYN MARY IMMS, YVETTE BANICEVICH AND DONNA DOE

Second Respondents

Court:Chambers, Goddard and Rodney Hansen JJ

Counsel:M C Black for Appellants

S P Bryers for First Respondents
A G Stuart for first-named Second Respondent
P J Shamy for second-named and third-named Second Respondents

Judgment:28 February 2007 at 4 pm

JUDGMENT OF THE COURT

The first respondents must pay to the appellants costs in the sum of $6,000, plus usual disbursements.

REASONS OF THE COURT

(Given by Chambers J)

A costs sequel

[1] On 13 December 2005, we delivered our decision in this matter, which was in favour of the appellants: see [2006] 2 NZLR 11. We recorded our hope that the parties would be able to determine costs for themselves: at [75].

[2]       Unfortunately that has not come to pass.  The appellants, following their success in this court, seek costs.  The respondents oppose that application.

Issues for resolution

[3]       There are two issues for resolution. 

[4]       The first is whether the appellants should receive costs.  The respondents argue that costs should lie where they fall.

[5]       The second issue, which arises if the first is answered in the appellants’ favour, concerns quantum.  The appellants seek $8,000; the respondents submit that $6,000 is appropriate.

Should the appellants receive costs?

[6]       The appellants seek costs on the standard principle that costs follow the event. 

[7]       Mr Bryers, for the trustees of the estate, the first respondents, submits that costs should lie where they fall.  He submits that it was appropriate for the trustees to seek directions on the subdivision proposal.  He noted that the answer to the question of the trustees’ authority to implement the proposal “was not clear cut, as evidenced by the different outcomes in the High Court and the Court of Appeal”.  He further submitted that the reality of any costs award against the estate would “effectively be borne by the second respondents only, as the whole of the residuary estate goes to the second respondents”.  Messrs Shamy and Stuart, for the second respondents, supported Mr Bryers’s submissions.  They added there was “no doubt that [the application by the trustees for directions] had to be made in the High Court”.  They also referred to “the failure by the will drafter to give land to the three natural daughters”. 

[8]       We have no doubt that the appellants are entitled to costs in this court, on the normal principle that costs follow the event.  There were no exceptional circumstances about this appeal.  The problem in this case has arisen primarily as a result of the trustees’ failure to treat all the beneficiaries fairly.  No doubt as a result of Jocelyn Imms’s status as both trustee and beneficiary, the trustees have bent over backwards to facilitate the interests of Mrs Imms and her sisters at the expense of the appellants.  There were difficulties with the will, but it is not correct that the trustees were bound to seek directions from the High Court.  The subdivision proposal did have merit – but only if supported by all the beneficiaries.  The trustees knew right from the start that the appellants did not support the subdivision proposal. 

[9]       Mr Bryers comments that the effect of any costs order will be to place the costs burden on the second respondents.  That is exactly how it should be.  The trustees pursued a proposal quite outside the will’s provisions at the second respondents’ instigation, thereby depriving the appellants for some years of their proper entitlement under their grandfather’s will. 

Quantum of the award

[10]     All counsel acknowledged that $6,000 is the current standard award for a one day appeal in this court.  Mr Black, for the appellants, sought an upgrade on the basis that the appellants faced opposition from not one party but effectively three – “the trustees (Mr Bryers acting), Jocelyn Imms (Mr Stuart) and … Yvette Banicevich and Donna Doe (Mr Shamy)”. 

[11]     We accept that, in appropriate circumstances, a successful appellant who has had to fight a war on several fronts against different enemies might be entitled to an uplift, on the basis that additional time was required for appeal preparation.  But this is not such a case, as all respondents were effectively singing from the same song sheet.  That is perhaps not surprising, given that the trustees to a significant extent had adopted the second respondents’ interests.  In these circumstances, we consider Mr Black would have spent only marginally longer in preparing this appeal than he would have had he faced only one opposing counsel. 

[12]     Although we note there was no dispute between counsel as to disbursements, we reserve that question for the registrar’s attention, in accordance with normal practice in this court. 

Solicitors:
Hammonds, Dargaville, for Appellants
Pegg Ayton Gordon, Dargaville, for First Respondents
Webster Malcolm & Kilpatrick, Warkworth, for first-named Second Respondent
Raymond Donnelly & Co, Christchurch, for second-named and third-named Second Respondents