Billingham v Wilson

[2014] NZHC 1568

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004642 [2014] NZHC 1568

UNDER

the Administration Act 1969, the Trustee

Act 1956 and the Public Trust Act 2001

IN THE MATTER

of the Estate of Ronald Alfred Billingham

BETWEEN

JAN MAREE BILLINGHAM Plaintiff

AND

RICHARD GEORGE WILSON and MARCUS ANDREW HUGH RUDKIN Defendants

Hearing:	(On the papers)
Counsel:	P A Fuscic for Plaintiff G C Jenkin for Stepdaughters
Judgment:	4 July 2014

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 4 July 2014 at 5.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           McVeagh Fleming, Auckland Jackson Russell, Auckland Bruce Dell Law, Auckland

Copy to:            G C Jenkin, Auckland

BILLINGHAM v WILSON & ANOR [2014] NZHC 1568 [4 July 2014]

[1]      The substantive issues in these proceedings have now been resolved without the need for hearing.  The plaintiff seeks costs to be apportioned between the estate and the stepdaughters.   The stepdaughters oppose the imposition of costs against them and argue the entire costs should be paid out of the estate.

[2]      Mr Jenkin argues that it was not until the plaintiff’s submissions were filed

on 5 March 2014 that the plaintiff ’s position became clear in relation to the October

2012 will.

[3]      Having reviewed the file, the minute of Associate Judge Abbott and the oral judgment of Woodhouse J I am satisfied that it is appropriate that part of the costs be borne by the stepdaughters as opposed to the estate generally.

[4]      At the hearing before Woodhouse J the stepdaughters opposed leave being granted to commence proceedings by originating application.  That was effectively resolved against them by the grant of leave the Judge made.  Counsel for the plaintiff was ready to argue the matter substantively before Woodhouse J.  It was adjourned by the Judge as a matter of fairness because the stepdaughters were not in a position to argue the matter that day.   The costs associated with that hearing should be allowed as against the stepdaughters.

[5]      Further, following that grant of leave the substantive relief sought by the plaintiff  was  effectively  conceded  with  the  appointment  of  the  Public  Trust  as trustee.

[6]      In  the  circumstances  there  will  be  costs  to  the  plaintiff  on  a  2B  basis calculated in accordance with the scheduled attached to Mr Fuscic’s memorandum, save for a reduction for the hearing time to a quarter day, namely $1,892 to be paid out of the estate generally;  $6,291.70 to be paid out of the stepdaughters’ share from

the estate.

Venning J