Courteney v Pratley - [2018] NZHC 1588

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2013-485-5912

[2018] NZHC 1588

UNDER the Family Protection Act 1955

IN THE MATTER OF

THE ESTATE OF JOAN AYLEEN COURTENEY

BETWEEN

STEVEN COURTENEY

First Plaintiff

KLAUDIA ARIANE COURTENEY

Second Plaintiff

AND

LANCE HOWARD PRATLEY AS

TRUSTEE AND EXECUTOR OF THE ESTATE, REPLACING STUART
COURTENEY, FORMER EXECUTOR

Defendant

Hearing: On the papers

Counsel:

J M Morrison for the Plaintiffs R J B Fowler for the Defendant

Judgment:

29 June 2018

JUDGMENT OF CULL J

On costs

[1] In my decision dated 28 July 2017, the plaintiffs’ claim under the Family Protection Act 1955 was upheld and I awarded the New Zealand assets from the estate of Joan Ayleen Courteney to the first plaintiff.1

1 Courteney v Pratley [2017] NZHC 1761.

COURTENEY v PRATLEY [2018] NZHC 1588 [29 June 2018]

[2] As the plaintiffs were successful, I invited counsel to file memoranda, if the parties were unable to agree.

[3] Mr Pratley sought indemnity costs for the steps he took in the proceeding following the conclusion of the 23 May 2017 hearing, which was heard on 9 November 2017.

[4] By my judgment dated 21 December 2017, I declined Mr Pratley’s costs as sought, which is currently under appeal.2

[5] The plaintiffs filed an application for costs dated 22 February 2018 seeking an order for increased costs against the previously named defendant Mr Stuart Courteney and against Mr Pratley, the currently named defendant, for the costs of the further steps in this proceeding, following the conclusion of the 23 May 2017 hearing.

[6] The plaintiffs’ application as it related to Mr Pratley was the subject of a joint memorandum and a consent order has been made in respect of the plaintiffs’ costs against him.

[7] In relation to Stuart Courteney, the plaintiffs seek increased costs (or an uplift) of 1.5 times the costs allowance for the steps in the proceedings, in accordance with schs 2 and 3 to the High Court Rules 2016 based on the 2B scale allocation, together with their disbursements.

[8] Those authorities provide that where a party has taken steps such as funding or controlling litigation, causing further unnecessary cost to the successful party, an award of costs can be made, even though the party has been a non-party.3

2 Courteney v Pratley [2017] NZHC 3285.
3 Dymocks Franchise Systems (New South Wales) Pty Ltd v Todd (No 2) [2004] UKPC 39, [2005] 1 NZLR 145; and Arklow Investments Ltd v MacLean HC Auckland CP49/97, 19 May 2000.

Submissions

[9]The plaintiffs submit they are entitled to costs against Stuart Courteney:

(a)For all of the steps in the proceeding prior to his removal as executor of his mother’s estate on 20 October 2015, because the plaintiffs are the successful party and he is the unsuccessful party.4

(b)For the steps in the case following his removal as executor to the delivery of the substantive judgment on the plaintiffs’…

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 Courteney v Pratley

Details

AGLC: Courteney v Pratley [2018] NZHC 1588
Case: [2018] NZHC 1588
Decision Date: 29 June 2018

CaseChat Overview and Summary

The Court heard an application for costs from Steven and Klaudia Courteney against Lance Pratley, as Trustee and Executor of the Estate of Joan Ayleen Courteney, and against Stuart Courteney, who had been removed from his positions as Trustee and Executor of the estate. The Court was asked to increase the costs awarded to the plaintiffs in the proceeding to the rate of 1.5 times the 2B scale allocation, based on the conduct of Stuart Courteney. The plaintiffs also sought an order for increased costs against Stuart Courteney, despite his removal as a party to the proceeding. The issues before the Court were whether the plaintiffs’ costs should be increased and whether such costs could be made against a non-party. The Court found that the plaintiffs were entitled to increased costs, at a rate of 1.5 times the 2B scale allocation. The Court also found that it was just and reasonable to make an order for costs against Stuart Courteney, despite his removal as a party to the proceeding. The Court awarded the plaintiffs costs in the amount of $135,778.

Orders