Cartwright v Joseph

[2021] NZHC 560

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2017-488-000058

[2021] NZHC 560

IN THE MATTER

of the Family Protection Act 1955

AND

IN THE MATTER

of the estate of John Boyd Harrison

BETWEEN

CATHERINE DAILE CARTWRIGHT and SARAH BEVERLEY HARRISON

Plaintiffs

AND

NITA WAIRANGI JOSEPH, BARRIE AGAR, BRETT HOGAN and TREVOR

DRAFFIN as trustees and executors of the estate of John Boyd Harrison

Defendants

Hearing:

(On the papers)

Counsel:

Plaintiffs in Person

Johanna Robertson for Nita Joseph Juliet Golightly for the Executors

Judgment:

18 March 2021

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 18 March 2021 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2021] NZHC 560 [18 March 2021]

Background

[1]    By way of summary,  and as set out in my 12 February 2021 judgment,  on  11 September 2018 I released a judgment in which I determined that John Boyd Harrison (“Tim”) had breached his moral duty to the plaintiffs, his daughters, Cathy and Sarah.1 I found they were entitled to provision in the order of 20 per cent of the estate (10 per cent each). I left open the question of how that award should be met by the estate and invited further submissions on that discrete point.

[2]    On 6 November 2018, after receiving further submissions from the executors of the estate and the plaintiffs, I made orders.2 I reserved leave to the parties to apply for such other necessary orders or directions in the event any subdivision and/or sale was impeded for reasons outside the control of the executors, or if unforeseen costs arose.3 This was because certain real property held by the estate needed to be subdivided and sold to meet the plaintiffs’ award.

[3]    On 6 September 2019, the plaintiffs then applied for further orders in respect of the award. This application was refused by me on 10 March 2020, on the grounds that the orders sought went against the substance of my original orders.

[4]    By memorandum dated 24 January 2021, the plaintiffs again sought further orders. In my 12 February 2021 judgment, to which this costs judgment relates, I concluded that no further orders should be made. In coming to that decision, I made the following findings:

(a)there were serious procedural and evidential difficulties with the plaintiffs’ application;

(b)the application was not authorised by the limited grant of leave in the 6 November 2018 decision;

1      Cartwright & Anor v Joseph & Ors [2018] NZHC 2383.

2      Cartwright & Anor v Joseph & Ors [2018] NZHC 2867 at [18].

3      At [18(f)].

(c)the essence of the plaintiffs’ complaints that the executors and trustees had breached their duties, the remedy for which would arise via a separate claim; and

(d)I was functus officio.

[5]    The application was dismissed. The executors now seek costs against the plaintiffs. The plaintiffs oppose any such order.

The parties’ positions as to costs

The executors

[6]    The executors submit that the plaintiff’s memorandum seeking further orders (“the Plaintiff’s Memorandum”)4 was treated as a formal application by the Court. The memorandum of counsel for the executors5 was necessarily filed in opposition to the plaintiffs’ application and included detailed submissions.

[7]    Costs are sought under r 14.2(1)(a) on a 2B basis under item 36 of sch 3 of the High Court Rules 2016, by analogy to item 24. Item 24 provides for preparation of written submissions with a time allocation of 1.5 days. Costs on a 2B basis for Item 24 come to $3,585.

The plaintiffs

[8]    In reply to the defendants’ application, the plaintiffs submit the present case is one where it is appropriate for the Court to exercise its discretion under r 14.7(g), being that some other reason not provided for in the rule exists, which justifies a refusal to grant costs, or a reduction in costs. They submit that the Court should exercise its discretion on the grounds that:

(a)the plaintiffs were successful in the 6 November 2018 judgment;

4      Dated 11 January 2020.

5      Dated 19 January 2020.

(b)the steps taken to satisfy the orders in that judgment have been time- consuming and costly;

(c)the plaintiffs have incurred considerable expense in relation to the underlying proceedings and satisfaction of the 6 November 2018 orders;

(d)issues raised by the plaintiffs could have been resolved without recourse to Court; and

(e)the costs award would be punitive and against the interest of justice in the circumstances.

[9]    In the event the Court considers it appropriate to award costs, the plaintiffs submit the more appropriate course is an award under category 2B by analogy to step 23, being $1,434. This is in line with my view that the Plaintiffs’ Memorandum to be an application in the proceedings, meaning the defendants’ memorandum would logically be in opposition to the application.

Discussion

[10]Rule 14.7 of the High Court Rules 2016 relevantly provides:

14.7     Refusal of, or reduction in, costs

… the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

…

(g)some other reason exists which justifies the court refusing   costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

[11]Rule 14.7(g) is considered to be a “catch-all provision”.6

[12]   I do not consider this to be an appropriate case for refusing or reducing costs. It would be an unusual course to reduce the costs payable when I have found, and

6      Schmuck v Northland Regional Council [2020] NZHC 1270 at [34].

made plain to the plaintiffs by my most recent judgment, that there were serious procedural and evidential difficulties in their application, particularly given the narrow scope of leave outlined in my decision of 6 November 2018.

[13]   Having so determined, I turn to consider the appropriate quantum. In my decision of 12 February 2021 I observed that the form of the application was irregular. Any such application should have been initiated as an application supported by evidence in the form of an affidavit/s. Nonetheless I considered that since the defendants had responded in opposition by filing memorandum, I saw no prejudice to either party in treating the application as though it were procedurally compliant.

[14]   I accept the plaintiffs’ submission that step 23 “Filing opposition to interlocutory application” is more analogous than step 24 “Preparation of written submissions”. The result is that the appropriate time allocation is 0.6, not 1.5 as the executors’ proposed

Conclusion

[15]I award costs of $1,434 in favour of the executors.

Moore J

Solicitors:

Ms Robertson, Auckland Ms Golightly, Whāngarei

Copy to:

The Plaintiffs