Blumenthal v Stewart - [2016] NZHC 3161

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-454-90 [2016] NZHC 3161

UNDER
The Family Protection Act 1955 and the

Law Reform (Testamentary Promises) Act 1949

IN THE MATTER OF

the Estate of JOHN HAWTHORN MATHIESON late of Palmerston North (Deceased)

UNDER

Part 18, Rule 18.1 High Court Rules

IN THE MATTER OF

the J H MATHIESON TRUST

BETWEEN

COLIN PAUL BLUMENTHAL Plaintiff

AND

BRUCE ANTHONY STEWART First Defendant

NEUROLOGICAL FOUNDATION OF NEW ZEALAND

Second Defendant

Hearing: On the papers

Counsel:

P A Morten for Plaintiff
J M Morrison for First Defendant
S R Morris for Second Defendant

Judgment:

20 December 2016

JUDGMENT OF ELLIS J (Costs and other matters)

I direct that the delivery time of this judgment is
2 pm on the 20th day of December 2016

BLUMENTHAL v STEWART [2016] NZHC 3161 [20 December 2016]

[1] Events subsequent to my substantive judgment almost exactly a year ago have been rather tortuous.1 A useful chronology is set out at para 12 of the memorandum of counsel for the second defendant dated 31 October 2016. I hope by this judgment to tidy up all loose ends. In order to understand the background to the issues this decision needs to be read in conjunction with my substantive judgment.

Stay

[2] On 24 September 2016 (over nine months after the release of my original judgment) Mr Morten filed a memorandum seeking a stay of my decision pending the plaintiff’s appeal to the Court of Appeal which is scheduled to be heard in March 2017. The short point is, however, that I decline to order a stay in the absence of a formal application.

Costs

[3] The first defendant seeks, and is entitled to, costs in relation to an interlocutory hearing in August 2014. These costs total $7,960.2

[4] Both defendants also seek their 2B costs in relation to the substantive matter. This raises issues about the application of r 14.15 and consideration of the extent of common interest and overlap between the defendants and their participation in this matter. In that respect I note:

(a) on 10 July 2015 (just before trial) the defendants filed a joint memorandum informing the Court that the second defendant adopted the evidence of the first defendant but that the second defendant would conduct the defence to the claim;

(b) that stance was maintained throughout the hearing;

1 Blumenthal v Stewart [2015] NZHC 3187, [2016] NZFLR 647.
2 Notwithstanding Mr Morten’s objection to the claim for 0.2 of a day for the preparation of an
undertaking, I allow that claim. Mr Morten did not take issue with the other items claimed.

(c) I noted in my judgment that the lead role played by the second defendant at the hearing was appropriate;3

(d)it was nonetheless necessary for the first defendant to give evidence, and he did so;4 and

(e) in light of the way in which the plaintiff chose to run part of his case (involving a personal attack on Mr Stewart in his capacity…

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 Blumenthal v Stewart

Details

AGLC: Blumenthal v Stewart [2016] NZHC 3161
Case: [2016] NZHC 3161
Decision Date: 20 December 2016

CaseChat Overview and Summary

In the case of Blumenthal v Stewart, the dispute involves the estate of John Hawthorn Mathieson and the J H Mathieson Trust. The plaintiff, Colin Paul Blumenthal, filed a claim against the first defendant, Bruce Anthony Stewart, and the second defendant, the Neurological Foundation of New Zealand, under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. The case was heard in the High Court of New Zealand, Wellington Registry.

The court was required to decide several legal issues, including whether to grant a stay of the decision pending an appeal, the allocation of costs between the defendants, and the reimbursement of disbursements. The court declined to order a stay in the absence of a formal application and addressed the costs and disbursements sought by the defendants. The court found that the first defendant was entitled to costs in relation to an interlocutory hearing, and both defendants were entitled to their 2B costs for the substantive matter. The court also ruled that the second defendant was not entitled to recover disbursements related to the use of out-of-town counsel.

The court reasoned that while the defendants had a joint defense, their interests were not entirely aligned, particularly regarding the plaintiff's personal attacks on the first defendant. The court allowed the first defendant's 2B costs in the sum of $13,514.50 and the second defendant's costs in the sum of $17,308.50. The plaintiff was ordered to pay the first defendant's costs in relation to the interlocutory matter, totaling $7,960, and to pay each defendant's disbursements as sought, except those related to the second defendant's use of out-of-town counsel.

The final orders of the court were to decline a stay pending appeal, order the plaintiff to pay the first defendant's costs in relation to the interlocutory matter, and require the plaintiff to pay the first and second defendants' 2B costs and disbursements as specified. The court also ruled that the second defendant was not entitled to recover disbursements related to the use of out-of-town counsel.

Orders