Collins v Edney

[2022] NZHC 2955

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-3

[2022] NZHC 2955

IN THE MATTER

of the Estate of Andrew Barry Stephenson

BETWEEN

KAREN PATRICIA COLLINS and PETER WILLIAM DIECKERMANN

Plaintiffs/Applicants

AND

KENNETH JAMES EDNEY and EDWIN MICHAEL BALE

Defendants/Respondents

Hearing:	On the papers
Appearances:	S Cavanaugh for Plaintiffs C Hickman for Defendants
Judgment:	10 November 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]    In this proceeding, the plaintiffs apply for probate in solemn form for what is said to be the last will and testament of the deceased, Andrew Barry Stephenson. This application is opposed by the defendants who contend that an earlier will should apply. The essential issue would appear to be testamentary capacity. It is a noteworthy feature of the case that neither the plaintiffs nor the defendants stand to gain as beneficiaries from either will.

[2]    The plaintiffs applied for a prospective costs order. That application was heard by Gendall J on 26 August 2022. In a judgment dated 29 August 2022 Gendall J made such an order in favour of the plaintiffs. Essentially, the order entitles them to their

COLLINS v EDNEY [2022] NZHC 2955 [10 November 2022]

actual and reasonable solicitor and client costs in connection to the substantive litigation.

[3]    The defendants did not apply for a corresponding prospective costs order by way of counterclaim ,but opposed the orders sought by the plaintiffs.

[4]    However, following Gendall J’s judgment the defendants at that stage raised the question as to whether they too should be protected for their costs. The plaintiffs agreed to such an order being made in favour of the defendants for the purposes of the substantive litigation, and on 4 October 2022 I made a consent order accordingly.

[5]    The only remaining issue is an application by the defendants for costs — on a solicitor and client basis or scale costs — for opposing the plaintiffs’ costs application.

[6]    Before the plaintiffs made their application they invited the defendants to agree to mutual prospective costs orders. The defendants refused to agree without unacceptable qualifications, and as already said, opposed the plaintiffs’ application.

[7]    In my view, in a situation such as this, it was near to inevitable that the Court would sanction prospective costs orders in favour of both parties. And indeed, Gendall J’s judgment suggests that the judge had little difficulty in disposing of the arguments advanced on the defendants’ behalves.

[8]    The  position  adopted  by  the  defendants  and  articulated  carefully   by   Ms Hickman in her submissions is that at all times their approach was intended to protect the assets of the estate. To that end, they appear to have sought to limit the costs chargeable by the plaintiffs against the estate to scale costs and proposed that costs be reviewed from time to time as the litigation progressed and reassessed at the conclusion of the litigation.

[9]    In my assessment, that was an unrealistic position for the defendants to have taken in the context of litigation in which neither side had a financial interest. Realistically, both parties need to be funded to conduct the litigation and ensure that

all issues are properly put before the Court however a determination can be made about the testator’s capacity.

[10]   For those reasons, I agree with the submission made on behalf of the plaintiffs by Ms Cavanaugh that the position adopted by the defendants in relation to the plaintiffs’ application for an order for prospective costs was an unreasonable one.

[11]   The conclusion I have reached is that the defendants, who of course now have the benefit of an order for prospective costs in relation to the substantive proceeding, must shoulder their own cost connected with their unsuccessful opposition to the plaintiffs’ application.

[12]   I decline to make any costs award in the defendants’ favour in relation to the plaintiffs’ interlocutory application.

Associate Judge Johnston

Solicitors and counsel:

Greg Kelly Law Ltd, Wellington for Plaintiffs/Applicants Hickman Law, Napier for Defendants/Respondents