Boyd v Connolly - [2016] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-603154 [2015] NZHC 2070

IN THE MATTER
of an application for Probate in Solemn

Form

IN THE MATTER

of the Estate of Fiona Marie Duncum

BETWEEN

KAREN MICHELLE BOYD Plaintiff

AND

SEAN CONNOLLY Defendant

On the papers

Judgment:

1 September 2016

JUDGMENT AS TO COSTS OF THOMAS J

This judgment was delivered by me on 1 September 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

BOYD v CONNOLLY [2016] NZHC 2070 [1 September 2016]

Introduction

[1] Ms Boyd and Mr Connolly were executors and trustees of an estate. Each disputed whether the other should remain in those roles. On 19 November 2015, I issued my judgment with the result that, as sought by Mr Connolly, both Mr Connolly and Ms Boyd were replaced as executors of the deceased estate.1
Ms Boyd had sought that the Court replace Mr Connolly with an independent lawyer

(a different one from the lawyer ultimately appointed).

[2] Ms Boyd now seeks that her costs be paid out of the estate. This application is opposed by Mr Connolly, who also seeks indemnity costs. Mr Connolly seeks indemnity costs of $15,663 (excluding the sealing of the judgment and excluding costs of subsequent costs memoranda), and Ms Boyd seeks $67,864.85, comprising both counsel costs of $25,004.00, solicitor costs of $41,270.85, and $1,590.00 in disbursements for “Court filing, hearing and setting down fee”. Ms Boyd’s scale costs are $32,558.00.

[3] I issued a minute on 9 March 2016 seeking clarification about the costs sought by the plaintiff, and whether they reflected solely costs of the proceeding or the wider costs incurred by the plaintiff in her role as executor. After receiving a response, I issued another minute on 1 June 2016 clarifying that only the costs incurred in pursuing this proceeding could be claimed and requesting that Ms Boyd file a memorandum specifically setting out the costs which were incurred in this proceeding.

Submissions

[4] Both parties seek indemnity costs in line with the general principle in estate litigation that the personal representatives of estates receive full protection for their
costs incurred as parties to proceedings where incurring those costs was reasonable.

1 Boyd v Connolly [2015] NZHC 2884.

Challenge to Ms Boyd’s costs

[5] Ms Boyd submits that bringing this case was necessary to determine the appropriate administrator, in circumstances where, due to the deceased’s failure to update her will, there was a conflict between Mr Connolly as executor and as a claimant under the Property (Relationships) Act 1976. She maintains there was nothing in the conduct of the proceeding which would warrant departure from the usual principle of awarding her full indemnity costs.

[6] Mr Connolly submits that, although the general principle is that litigation arising due to the fault of the testator may warrant full costs being paid from the estate, there is a residual discretion to award costs in a way which achieves justice between the parties.…

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 Boyd v Connolly

Details

AGLC: Boyd v Connolly [2016] NZHC 2070
Case: [2016] NZHC 2070
Decision Date: 1 September 2016

CaseChat Overview and Summary

The Court was required to determine whether the plaintiff, Karen Michelle Boyd, should be awarded indemnity costs for her legal expenses from the estate of Fiona Marie Duncum. The defendant, Sean Connolly, opposed the application and sought indemnity costs himself. The Court had to decide whether the plaintiff's costs were reasonable and necessary for the proceedings, and if the estate should bear the burden of those costs. The Court also needed to assess whether the defendant's costs were reasonable and should be paid from the estate.

The Court found that the plaintiff's costs were excessive and not solely related to the proceedings. The plaintiff's scale costs were accepted, but the Court was not satisfied that the actual costs incurred were reasonable. The Court noted that the plaintiff's costs were more than twice the scale costs, which is unusual since scale costs should be around two-thirds of the actual costs. The Court also found that some of the plaintiff's claimed costs were for work not directly necessary for the proceeding. The Court exercised its discretion to award 2B scale costs with an uplift of 25 per cent, reflecting the reasonable costs of a proceeding of this size and complexity. This award was over $20,000 less than the plaintiff's indemnity costs claim.

The Court found that the defendant's opposition to the application was reasonable, and there was no evidence that he acted unreasonably or in an obdurate manner which prolonged the proceedings. The defendant's costs were below 2B scale costs, and there was no barrier to indemnifying him from the estate.

The Court ordered that the defendant's actual costs be paid from the estate, and the plaintiff be awarded 2B scale costs with an uplift of 25 per cent. The Court clarified that this award did not preclude the plaintiff from ultimately claiming the balance of costs she has incurred while reasonably acting for the estate, but she must seek reimbursement for those costs from the current administrator/executor of the estate.

Orders