Coote v Warren

[2014] NZHC 97

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2005-488-000022 [2014] NZHC 97

IN THE ESTATE OF         TERENCE MIGHT COOTE of

Whangarei, Retired

Deceased

BETWEEN  JAMES TERENCE COOTE Applicant

ANDDIANNA MIGHT WARREN AND JULIE BLANCHE COOTE

Respondents

Hearing:                   7 February 2014 (On the papers) Appearances:  A Gilchrist for Applicant

A J Robinson for Respondents

Judgment:                10 February 2014

JUDGMENT OF PANCKHURST J RE  COSTS DECISION

Introduction

[1]      In a judgment dated 3 December 2013 I made an order that the three parties to this proceeding be removed as executors/trustees of their late father’s estate and that the Public Trust at Whangarei be appointed to complete administration of the estate. Costs were reserved to enable memoranda to be filed.

The contentions

[2]      For the applicant, Mr Gilchrist submitted that costs should follow the event and that a category 2B award in the sum of $8,756, plus disbursements of $485, was

appropriate.   Mr Robinson, however, contended that if anything, a 1B award of

COOTE v WARREN AND ANOR [2014] NZHC 97 [10 February 2014]

$2,970 was appropriate.  He noted the hearing itself took about one hour, whereas the claim for that aspect was for a full half day.

Decision

[3]      I consider it would be artificial to make a category 1 award.  Not only are counsel experienced, but this was an interlocutory application of at least average complexity.  Category 2, in my view, is plainly appropriate.

[4]      That said, there is a dimension of the proceeding which requires recognition. The hearing was truncated.  Mr Gilchrist made short submissions in support of the interlocutory application.  As Mr Robinson began I intervened to indicate that in my view there was a basis to find that it was expedient to remove the existing executors/trustees and substitute the Public Trust.   I referred to the nature of the proceeding, the fact that it involved siblings and to the dignity involved in agreed outcome, as opposed to one imposed by the Court.

[5]      Mr  Robinson  took  instructions  from  his  clients’,  the  respondents  by telephone.   It was unnecessary for the hearing to proceed further, albeit a short judgment was issued, rather than consent orders made on agreed terms.

[6]      Nonetheless, I am of the view that this turn of events requires recognition. Particularly in a family matter such as this, where common sense and a desire to find a solution, albeit at the eleventh hour, prevailed; I am of the view that the award should be halved.  This not only recognises the truncated nature of the hearing, but also the other factors to which I have referred.

[7]      Costs in the sum of $4,378 are awarded to the applicant together with disbursements of $485.  Payment of this amount is to occur in the final wash-up of the estate, as directed in the substantive judgment.

Solicitors:

A J Gilchrist, Auckland

Eastland Legal, Gisborne