Cook v MacDonald

[2023] NZHC 1459

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001223

[2023] NZHC 1459

BETWEEN

ANGELA KATHRYN COOK

Applicant

AND

DEREK RANALD MACDONALD,

ALEXANDER DUNCAN MACDONALD

as executors of the ESTATE OF ROSS WILLIAM MACDONALD

First Respondents

R M TRUSTEE LIMITED

Second Respondent

Hearing:	On the papers
Judgment:	12 June 2023

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Monday, 12 June 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

LeeSalmonLong, Auckland. I Hikaka, Auckland.

COOK v MACDONALD [2023] NZHC 1459 [12 June 2023]

[1]                  Ross MacDonald died 13 May 2021. Mr MacDonald had, much earlier, settled the RWM Trust.1 R M Trustee Ltd is the sole trustee of the trust.2

[2]                  Angela Cook, Mr MacDonald’s partner, sought information about his estate from the executors. Ms Cook also sought information about the trust from the trustee. Dissatisfied with their responses, on 19 July 2022, Ms Cook filed an originating application directing the executors and trustee to provide her specified information.

[3]                  The application was to be heard 17 May 2023. On 16 May 2023, the parties filed a joint memorandum inviting orders by agreement and vacation of the fixture.3  I made orders accordingly.

[4]The parties have not been able to agree costs. Ms Cook seeks 2B costs of

$17,921.

[5]                  The executors and trustee oppose costs on the basis “Ms Cook has not won any litigation”. I disagree. Ms Cook was successful by the consent orders. It follows she is entitled to costs.4

[6]                  The executors and trustee also oppose costs on the basis Mr MacDonald died suddenly; that he was a private individual who did  not  keep orderly records; that  Mr MacDonald’s financial affairs were large and complex; that much of the information sought was overseas, beyond the possession of the executors and trustee; and that the pandemic hindered their ability to obtain the information sought.

[7]                  I am not persuaded this matrix disentitles Ms Cook to costs; after all, she remains successful in her application against those with responsibility for administering the estate and trust. However, I am persuaded the matrix justifies the reduction of costs (despite the principle that costs’ determinations “should be predictable and expeditious”5) for the reasons identified by the executors and trustee, namely, the existence of circumstances beyond their control.

1      The trust.

2      The trustee.

3      The consent orders.

4      See, for example, Ding v Ai [2020] NZHC 858 at [4].

5      High Court Rules 2016, r 14.7(g).

[8]I, therefore, award Ms Cook 60 percent of $17,921, being costs of $10,752.60.

……………………………..

Downs J