[Cain] v [Giles] - [2024] NZHC 538

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000138

[2024] NZHC 538

UNDER the Family Protection Act 1955

IN THE MATTER

of an appeal against a decision of the Family Court at Hamilton

BETWEEN

MARISSA CAIN and JOHNNY GREEN

as trustees and executors of the estate of Ronald Giles

Appellant

AND

LORRAINE GILES

Respondent

Hearing: 21 September 2023

Appearances:

K A McDonald for Appellant P A Depledge for Respondent

Judgment:

14 March 2024

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 14 March 2024 at 9 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………..

Counsel/Solicitors:
Gallie Miles, Te Awamutu P A Depledge, Hamilton Jefferies Law, Hamilton

[CAIN] v [GILES] [2024] NZHC 538 [14 March 2024]

[1] The trustees and executors of the estate of [Ronald Giles] (the Trustees) appeal one element of the judgment of Judge G S Collin striking out an application by [Lorraine Giles] seeking a variation of the will of her father, [Ronald], and orders that her trust fund established under the will be paid to her.1 The Trustees appeal the Judge’s decision to make no order as to costs.2

[2] The Trustees say that, if the Judge had been aware of three pre-trial “without prejudice save as to costs” letters from their solicitors to [Lorraine]’s solicitors (the without prejudice letters), the Judge would have awarded costs in their favour. The Trustees seek payment of $28,741.15, being the actual legal costs incurred by the Trustees in defending [Lorraine]’s application after the first without prejudice letter was sent.

[3] On 2 August 2023, Tahana J granted special leave to admit in evidence the without prejudice letters.3 [Lorraine] did not oppose leave being granted. However, [Lorraine] opposes the appeal and says the without prejudice letters do not provide a sufficient basis for departing from the Family Court’s decision on costs.

[4] Initially, the parties had asked this Court to refer the question of costs back to Judge Collin for determination. However, Tahana J ruled that, in accordance with r 20.19(1) of the High Court Rules 2016, the Court’s jurisdiction to direct the Family Court to rehear proceedings that are the subject of an appeal, arises only after hearing the appeal.4

[5]I heard the appeal on 21 September 2023.

[6] Counsel for both parties made submissions on what they considered the substantive decision should be. Ms McDonald, counsel for the Trustees, submitted that this Court should make the decision on costs and should not impose further expense on the parties by referring the decision back to the Family Court.

1 [Giles] v [Cain] [2023] NZFC 2599 [Family Court judgment]
2 At [45].
3 [Cain] v [Giles] HC Hamilton CIV-2023-419-000138, 2 August 2023 (Minute of…

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 [Cain] v [Giles]

Details

AGLC: [Cain] v [Giles] [2024] NZHC 538
Case: [2024] NZHC 538
Decision Date: 14 March 2024

CaseChat Overview and Summary

The appeal before the Court was brought by the trustees and executors of the estate of Ronald Giles, seeking to overturn the decision of Judge Collin in the Family Court to strike out an application by Lorraine Giles for a variation of her father's will and orders that her trust fund be paid to her. Specifically, the Trustees sought an order that Lorraine pay the legal costs incurred by the Trustees after sending the first of three pre-trial "without prejudice save as to costs" letters to Lorraine's solicitors. The Trustees claimed that had the Judge been aware of these letters, he would have awarded costs in their favour. Lorraine opposed the appeal and argued that the without prejudice letters did not provide a sufficient basis for departing from the Family Court's decision on costs.

The Court found that the Judge had not failed to have regard to relevant matters, nor was his decision plainly wrong. The Court also concluded that the without prejudice letters would not have made any difference to the Judge's decision on costs. The appeal was dismissed, and the Court ordered that the Trustees must not deduct the costs of the proceeding from Lorraine's trust fund and that any costs already deducted are to be reimbursed from the residuary estate. The Court also directed the Trustees to have proper regard to their obligation to make appropriate provision for Lorraine in the discharge of their functions.

Orders