Cooke v McMillan - [2018] NZHC 3154

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3232

[2018] NZHC 3154

BETWEEN
NIGEL GARLAND COOKE

Plaintiff

AND

ROSAMONDE BERNICE McMILLAN

First Defendant

THE PUBLIC TRUST OF NEW ZEALAND

Second Defendant

Hearing: 1 November 2018

Counsel:

R J Connell for Plaintiff

S J Humphrey for First Defendant

Judgment:

3 December 2018

Reissued:

7 December 2018

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 3 December 2018 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Connell & Connell (Auckland) for Plaintiff
Lee Salmon Long (Auckland) for First Defendant

COOKE v McMILLAN & ANOR [2018] NZHC 3154 [3 December 2018]

Introduction

[1]This is a costs judgment.

[2] The proceeding at the heart of the dispute revolved around the ownership of an investment portfolio held by Craigs Investment Partners (the Craigs portfolio) and a number of bank accounts (the BNZ accounts).

[3] The original owner of the Craigs portfolio and the BNZ accounts was an elderly woman (Mrs Cooke). After she died, her daughter (Mrs McMillan) claimed the portfolio and the bank accounts by survivorship. Her brother (Mr Cooke) thought her conduct was unconscionable. He was of the view that the portfolio and the BNZ accounts should have passed into his mother’s estate and so he issued proceedings against Mrs McMillan.

[4] A four-day fixture was allocated for the hearing. A day or so before the hearing commenced, the parties settled the dispute except for the matter of costs.

[5] The matter has now come before me because the parties have been unable to agree.

Chronology

[6] Mrs Cooke died on 30 June 2015. The part of her Will that gave rise to the dispute stated:

5 Gifts of Specified Property

I make the following specific gifts:

5.1 Specific Gift

I GIVE all shares and rights to shares which I own at my death (including my shares in Lion Nathan Limited, Brierley Investments Limited and ABN Ambros) including any dividend without apportionment to my daughter ROSAMONDE BERNICE MCMILLAN if she survives me.

…

7 Gift of Residue

I GIVE –

My residuary estate to be divided equally among my son JON BEALE COOKE, my daughter ROSAMONDE BERNICE MCMILLAN, my
son NIGEL GARLAND COOKE and my daughter JULIET JEAN CLARKE living at my death. However if this gift to any such beneficiary does not take effect THEN any benefit to which that beneficiary would have been entitled is to be taken equally by those of his or her children who are living at my death.

[7] When Mrs Cooke died the Craigs portfolio and the BNZ accounts passed to Mrs McMillan. When Mr Cooke heard about this, he wrote to Mrs McMillan seeking confirmation.

[8] On 24 September 2015, Mrs McMillan’s solicitors wrote to Mr Cooke. They said they were not aware of any concerns about Mrs Cooke’s testamentary capacity at the time the Will was made. As to the ownership of the share-portion 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 Cooke v McMillan

Details

AGLC: Cooke v McMillan [2018] NZHC 3154
Case: [2018] NZHC 3154
Decision Date: 3 December 2018

CaseChat Overview and Summary

The case of Cooke v McMillan is a costs judgment that arose from a dispute over the ownership of an investment portfolio and bank accounts belonging to the late Mrs. Cooke. After Mrs. Cooke's death, her daughter, Mrs. McMillan, claimed the portfolio and accounts by survivorship, but her brother, Mr. Cooke, disputed this and claimed the assets should have passed into his mother's estate. The parties eventually settled the dispute, but could not agree on the costs. The court had to decide whether Mr. Cooke was entitled to costs on a 2B (costs follow the event) basis or if the costs should lie where they fell due to the parties' conduct. The court found that while Mr. Cooke was entitled to costs for the period up until the second settlement offer, his refusal to accept the second settlement offer was unreasonable, and as such, costs should lie where they fell from 23 March 2017 until 11 May 2018. After 11 May 2018, Mrs. McMillan was entitled to costs on a 2B basis.

The court ordered that Mr. Cooke was entitled to costs on a 2B basis for the period up until 23 March 2017. From 23 March 2017 until 11 May 2018, costs should lie where they fell because Mr. Cooke unreasonably refused the second settlement offer. After 11 May 2018, Mrs. McMillan was entitled to costs on a 2B basis because Mr. Cooke unreasonably refused the third settlement offer, which essentially provided him with everything he sought from the proceeding.

Orders