Bean v Bean - [2019] NZHC 545

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2017-463-97

[2019] NZHC 545

BETWEEN
WARREN ONSLOW BEAN

Appellant

AND

CHERIE MARION BEAN

First Respondent

CHERIE MARION BEAN WARREN ONSLOW BEAN WILLIAM JOHN LYNCH

Second Respondents

Hearing: On the papers

Counsel:

J Hosking for appellant S Scott for respondents

Judgment:

22 March 2019

JUDGMENT OF KATZ J

[Costs]

This judgment was delivered by me on 22 March 2019 at 2:00pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: The Law Shop, Rotorua
Chris Rejthar & Associates, Tauranga

Counsel: J Hosking, Barrister, Rotorua
S Scott, Barrister, Tauranga

BEAN v BEAN [2019] NZHC 545 [22 March 2019]

Introduction

[1] Cherie Bean filed an application in the Family Court, under the Family Protection Act 1955, seeking further provision from the estate of her late mother. Cherie’s brother, Warren Bean, applied to strike out the proceeding on the ground that no reasonable basis for the application is disclosed.1

[2] Judge Brown declined Warren’s strike-out application.2 Warren then appealed that decision to this Court. I allowed the appeal and struck out Cherie’s Family Court proceeding.3 Warren now seeks an award of costs in respect of both the Family Court proceeding and the appeal to this Court.

Costs

Family Court

[3] Both parties filed submissions on costs in the Family Court, but no costs decision was given by that Court, as a consequence of Warren appealing the Family Court’s decision to this Court. Warren claims the following costs in relation to the Family Court proceeding, in accordance with Schedule 3 of the District Court Rules 2009. (I note that this legislation is no longer in force, however, the costs sought are accurate, in accordance with Schedule 5 of the District Court Rules 2014).

Item

Particulars

Allocated days

(at $1780 per day)

Amount

9.10

Preparing and filing interlocutory application and supporting affidavits

0.4

$712.00

9.12

Preparing written submissions

1

$1,780.00

9.14

Appearance at hearing of defended interlocutory application for sole or principal counsel

0.5

$890.00

Total days at $1780

1.9

$3,382.00

Disbursements:

Binding

$35.95

Total

$3,417.95

1      Family Court Rules 2002, r 193(1)(a).
2      Bean v Bean [2018] NZFC 5920.
3      Bean v Bean [2019] NZHC 20

High Court

[4]Warren claims the following costs in the High Court, on a 2B scale basis:

Item

Particulars

Allocated days

(at $2330 per day)

Amount

52

Commencement of appeal or cross- appeal

1

$2,230.00

10

Preparation for first case management conference

0.4

$892.00

11

Filing memorandum for first case management conference

0.4

$892.00

13

Appearance at first case management conference

0.3

$669.00

55

Preparation of Case on Appeal

1

$2,230.00

56

Preparation of written submissions

3

$6,690.00

57

Appearance at hearing for sole or principal counsel

0.5

$1,115.00

Total days at $2230

6.6

$14,718.00

Disbursements:

Filing

$540.00

Scheduling Fee

$640.00

Binding

$29.97

Total

$15,924.97

[5] A 50 per cent uplift is also sought for items 55 and 57, on the basis that those attendances were incurred after Warren had made…

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 Bean v Bean

Details

AGLC: Bean v Bean [2019] NZHC 545
Case: [2019] NZHC 545
Decision Date: 22 March 2019

CaseChat Overview and Summary

In the case of Bean v Bean, Warren Onslow Bean sought costs from Cherie Marion Bean in relation to proceedings in the Family Court and the High Court. Warren, Cherie's brother, had successfully appealed a Family Court decision that declined his application to strike out Cherie's application for further provision from her late mother's estate. Warren now sought an award of costs in respect of both the Family Court proceeding and the appeal to the High Court. The primary legal issues in this case were whether costs should be awarded to Warren for the Family Court proceeding and whether an uplift in costs should be awarded for the High Court appeal. The Court found that costs should be awarded to Warren for the Family Court proceeding as he was successful on appeal. However, the Court did not find that an uplift in costs was justified for the High Court appeal as the lack of merit in Cherie's claim was not so obvious and incontrovertible as to warrant increased costs. Additionally, the correspondence relied on by Warren to show that he made serious efforts to "streamline" the proceedings did not contain an actual settlement offer, and therefore did not justify an uplift in costs. The Court ordered that Cherie Bean pay $3,417.95 in respect of costs and disbursements in the Family Court and $15,924.97 in respect of costs and disbursements in the High Court, for a total of $19,342.92.

This case highlights the importance of considering the merits of a claim and the rationale behind awarding increased costs. The Court found that while Cherie's claim was weak, it was not so obviously without merit as to warrant increased costs. Additionally, the Court found that the correspondence relied on by Warren did not contain an actual settlement offer, and therefore did not justify an uplift in costs. This case serves as a reminder that the award of costs is always at the discretion of the Court, and that the Court must consider what is just and equitable in each case.

Orders