Bones v Wright - [2013] NZHC 2093

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2013-419-000479 [2013] NZHC 2093

IN THE MATTER of the Family Protection Act 1955

AND IN THE MATTER of an appeal against a decision of the
Family Court at Hamilton

BETWEEN DEBORAH JANE BONES Appellant

ANDJANET WRIGHT Respondent

Hearing: (on the papers)

Appearances: D M O'Neill for the Appellant
M H Leaf for the Respondent

Judgment: 16 August 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 16 August 2013 at 4.30 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

BONES v WRIGHT [2013] NZHC 2093 [16 August 2013]

[1] I refer to my reserved judgment issued on 1 August 2013. I granted the appellant leave to appeal out of time, allowed the appeal, and set aside the judgment given in the Family Court. I recorded that I had suggested to counsel that costs should lie where they fall, but that both had indicated that they would seek costs on behalf of their respective clients.

[2] Mr O’Neill, on behalf of the appellant, seeks costs on a 2B basis, in a total

sum of $15,722.08.

[3] Ms Leaf, on behalf of the respondent, suggests that each party should bear her own costs, or that costs should be met from the estate. She submits that this is usual practice. She notes that any award of costs would reduce the amount available to the respondent, and argues that the respondent can ill afford to have the amount she receives pursuant to her mother’s last will reduced. She also submits that the respondent’s application to the Family Court had a reasonable prospect of success, and that it was not a meritless claim. She notes that to date, the respondent has met her own legal costs, whereas the appellant, who was also a trustee of the estate, has only been required to meet part of the costs, because her counsel appeared for her in two capacities — both as a trustee, and as a beneficiary. In the alternative, she submits that aspects of Mr O’Neill’s costs claim are inappropriate, in particular, his submission that his client is entitled to the costs of drafting and filing an application for leave to appeal. She submits that that application was only required as a consequence of the appeal being filed out of time.

[4] The costs incidental to any proceedings are in the discretion of the Court.[1]
Normally, it can be expected that a party who fails with respect to a proceeding should pay costs to the party who succeeds.[2]

[1] High Court Rules, r 14.1.

[2] Rule 14.2(a).

[5] Despite these general principles, the practice developed in family protection proceedings is for the Court to order that the costs of all parties should be borne out of the residue of the estate of the deceased.[3] This rule, however, is not invariable.[4]
On occasion, the Court will leave costs to lie where they fell, with the result that…

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 Bones v Wright

Details

AGLC: Bones v Wright [2013] NZHC 2093
Case: [2013] NZHC 2093
Decision Date: 16 August 2013

CaseChat Overview and Summary

In the matter of Bones v Wright, the appellant, Deborah Jane Bones, appealed a decision of the Family Court concerning the estate of her deceased mother. The court was tasked with determining the appropriate allocation of costs between the parties involved in the appeal, which was allowed, and the original judgment set aside. The legal issues before the court were primarily focused on the discretion of the court in allocating costs in family protection proceedings and the circumstances under which costs may be ordered to be borne by the estate or left to lie where they fall.

The court considered the established practice in family protection proceedings, which often directs that costs should be borne by the estate to avoid unfairly impacting residuary beneficiaries, particularly where the estate is not large. However, the court also recognised that this rule is not invariable and that costs may be left to lie where they fall if it is in the overall interests of justice to do so. The court weighed various factors, including the merits of the parties' claims, their financial positions, and the impact of a costs order on the estate and its beneficiaries.

The court concluded that it was in the overall interests of justice to make no order for costs between the parties and to direct that costs should lie where they fall. This decision was based on the fact that Mrs Wright, the respondent, had been successful in the Family Court and her claim was not devoid of merit. Additionally, the court noted that both parties were not in a strong financial position and that ordering costs to be paid out of the estate would unfairly affect Mrs Wright's son and the appellant's brother, who had not participated in the proceedings. The court also took into account the strained relationship between the mother and daughter and the absence of unnecessary complexity or procedural ploys in the proceedings.

The final orders of the court were that no costs order would be made in favour of one party against the other, and both parties would bear their own costs.

Orders