Bateman v Whanga

[2023] NZHC 3539

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-71

[2023] NZHC 3539

UNDER

the Administration Act 1969 and the Trusts Act 2019

IN THE MATTER

of the Estate of Roimata Whanga

BETWEEN

HARRIET AHUMAIN WHANGA BATEMAN

Plaintiff

AND

RODNEY ROIMATA WHANGA

Defendant

On the Papers
Counsel:	Z T Mora for Plaintiff Defendant in Person
Judgment:	6 December 2023

JUDGMENT OF ISAC J

[Costs]

[1]    On 7 September 2023, I granted the plaintiff’s application for orders removing the defendant as executor and trustee of the estate of Mr Roimata Whanga, and appointing Ms Maria Whanga-Pahi in his place.1 In summary, I found the defendant had failed to carry out his core duties as executor, was conflicted in that role, had delayed administration of the estate to the detriment of the beneficiaries, and was hostile towards them.2

1      Bateman v Whanga [2023] NZHC 2517.

2      At [20]–[26].

BATEMAN v WHANGA [2023] NZHC 3539 [6 December 2023]

[2]    I awarded costs in favour of the plaintiff on a 2B basis, and recorded that the parties could file memoranda if they were unable to agree costs between themselves.3 The issue of costs has not been resolved informally.

[3]    The plaintiff seeks costs on a 2B basis of $16,013, together with disbursements of $2,450.78.

[4]    The defendant, in a memorandum of 8 November 2023, submits that the plaintiff should bear her own costs and disbursements or, alternatively, that these should be borne by the estate.4

[5]    The normal course is that the unsuccessful party in litigation pays the costs of the successful party.5 So far as possible, costs should be predictable and expeditious.6 Scale costs apply unless cause is shown to depart from them.7

[6]    The plaintiff was entirely successful in this proceeding and I am clearly satisfied that costs should follow the event. There is nothing in the circumstances which support a different conclusion. It would not be appropriate or fair to require the plaintiffs or the estate to shoulder the costs of bringing these proceedings.8 Moreover, Mr Whanga’s conduct of his defence undoubtedly increased the costs that were incurred.  This  included  a  hearing  aborted  at  the  last  minute  on  the  basis  of Mr Whanga’s claim that he had only discovered the notice of fixture in his garden a day or two before the scheduled hearing. This resulted in an adjournment and the need for a new fixture to be allocated.

3      At [30(d)].

4      The memorandum also appears to attempt to relitigate a range of matters raised by the defendant at the substantive hearing, and seeks orders that the estate contribute to the cost of building a fence on the edge of the property. None of these matters are relevant to the present issue of costs, and the Court is unable to consider them here.

5      High Court Rules 2016, r 14.2(1)(a).

6      Rule 14.2(1)(g).

7      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27]–[28].

8      Neither party raised whether the defendant might be entitled to an indemnity as trustee of the estate (see, for instance, Tillemans v Tillemans [2020] NZHC 1907 at [24]–[30]). However, given my findings that the defendant acted in a conflict of interest and preferred his personal interests to those of the estate’s beneficiaries, I would have found that he is not entitled to the benefit of an indemnity even if he qualified for one.

[7]I award the costs and disbursements sought by the plaintiff accordingly.

Isac J

Solicitors:

McCaw Lewis, Hamilton for Applicant