Curin v Kane

[2024] NZHC 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1545

[2024] NZHC 2014

BETWEEN

PAUL RICHARD CURIN

and
MICHAEL REX CURIN
Plaintiffs

AND

PAUL KANE,

JOANNE ELIZABETH CURIN, and
JOHN RICHARD CURIN as Trustees of the Elizabeth Curin Trust
First Defendants

PAUL KANE and
JOANNE ELIZABETH CURIN
as Trusteees of the John Richard Curin Trust Second Defendants

JOANNE ELIZABETH CURIN

as Trustee of the Elizabeth Curin Trust and the John Richard Curin Trust

Third Defendants

Hearing:

23 July 2024

Appearances:

Vanessa Bruton KC and Paul McKendrick for the Plaintiffs Jeremy Johnson for the First Defendants and Second Defendants David Bigio KC and James Little for Third Defendant

Zara Matheson for John Richard Curin, as litigation guardian

Judgment:

23 July 2024

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 23 July 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

CURIN v KANE & ORS [2024] NZHC 2014 [23 July 2024]

[1]        Counsel for the plaintiffs filed a memorandum as to costs dated 13 December 2023, counsel for  the  third  defendant  filed  a  memorandum  in  response  dated  20 December 2023, and counsel for the plaintiffs filed a reply dated 19 January 2024. The Court apologises for the delay in reply as these memoranda have only just been referred to me.

Background

[2]        On 5 July 2023 the plaintiffs filed an application to depose the first defendant, Mr John Curin (Mr Curin), referencing that Mr Curin’s evidence is material to the proceedings, he is 99 years old, and there was a risk that he could pass away before the trial. The first and second defendants provided on a without prejudice basis a copy of an affidavit sworn by Mr Curin on 21 December 2022.

[3]        Independent counsel, Ms Zara Matheson, has been appointed as litigation guardian for Mr Curin.

[4]        On 13 September 2023 the second defendants filed a further affidavit from Mr Curin which had been sworn on 30 May 2023. The first and second defendants consider Mr Curin had capacity as at 30 May 2023.

[5]        On 1 November 2023 counsel for Mr Curin filed a notice of opposition and affidavit from Dr Helen Kenealy (Dr Kenealy), sworn on 1 November 2023, which records that as at 25 October 2023 Mr Curin did not have the capacity to be deposed.

[6]        On 1 and 7 November 2023 the third defendant, and the first and second defendants, filed notices of opposition to the plaintiff’s application referencing the affidavit of Dr Kenealy.

[7]        The plaintiffs have obtained an affidavit from Associate Professor Cheung sworn on 17 November 2023 who deposed, based on the observations of Dr Kenealy, that Mr Curin did not have capacity to be deposed; did not have capacity to act as a trustee; did not have the capacity to appoint or remove trustees;  or capacity to make a new will. The plaintiffs withdrew their application to depose Mr Curin.

Plaintiffs’ position

[8]        The plaintiffs’ position is that costs in respect of the application to depose  Mr Curin should be reserved and the plaintiffs’ costs for obtaining the evidence of Associate Professor Cheung paid by the first and second defendants. The basis for their views are:

(a)The capacity of Mr Curin was not in issue for the  defendants  as at  30 May 2023 (when filing the second affidavit  of Mr Curin), nor     18 August  2023  (his  counsel’s  letter),   nor   25   August   2023   (his counsel’s memorandum), nor presumably before 25 October 2023 (Dr Kenealy’s assessment). The plaintiffs submit the application was necessary, given the risk of Mr Curin passing away before the trial which was clearly the motivation for the defendants to obtain affidavits from him in December 2022 and May 2023.

(b)The plaintiffs’ application did not fail, the merits remain undetermined, and the application was appropriately brought and has only been withdrawn as a result of the expert opinions of Mr Curin’s absence of capacity to be deposed, provided on 1 and 17 November 2023.

(c)No determination has been made as to whether Mr Curin’s two affidavits are admissible at trial and until that has occurred costs should be reserved (save for Associate Professor Cheung’s fees).

The third defendant’s position

[9]Counsel for the third defendant:

(a)seeks an order for costs on a 2B basis against the plaintiffs, plus disbursements, arising out of the plaintiffs’ withdrawing the application to depose Mr Curin. These costs are assessed at $1,544.00 ($1,434.00 for the notice of opposition and $110.00 filing fee);

(b)opposes the plaintiffs’ application for an order that they be reimbursed by the first and second defendants for Associate Professor Cheung’s fees.

[10]Submissions by the third defendant are:

(a)the usual rule is that if a party withdraws an application after requiring others to incur costs in opposing it, costs will be awarded and this is the position in respect of the plaintiffs’ application to depose Mr Curin;

(b)the plaintiffs did not withdraw their application despite being urged to do so by the third defendant’s solicitors on 15 September 2023 and again on 8 November 2023;

(c)the third defendant filed her opposition and affidavit in support on     1 November 2023, explaining the reasons why the third defendant considered the application should be withdrawn;

(d)the third defendant’s opposition to any order to pay Professor Cheung’s fees on the basis that the costs of Professor Cheung’s report was not filed in support of the plaintiffs’ application and is inconsistent with it, and if the plaintiffs wish to pursue a claim for these costs then a claim should be made to the trustees for reimbursement and a claim pursued against the trustees for breach of trust if the plaintiffs consider that to be the case. The third defendant rejects the proposition that obtaining Dr Cheung’s report was in the interests of the beneficiaries as well as the plaintiffs.

The plaintiffs’ reply

[11]The plaintiffs make the following points in reply:

(a)No notices of opposition to the application were filed for almost four months, until 1 November 2023, by which time Mr Curin’s advisors had obtained the expert evidence of Dr Kenealy that Mr Curin did not

have capacity to be deposed. Mr Curin’s opposition to the application was filed on 1 November 2023, based on Dr Kenealy’s opposition. His counsel is not seeking costs;

(b)the first and second defendants filed opposition to the application on  7 November 2023, based on Dr Kenealy’s opinion. Their counsel has also chosen not to seek costs;

(c)the third  defendant  filed  a  notice  of  opposition  and  affidavit  on  1 November 2023 based on her personal views as to Mr Curin’s capacity when he swore his affidavits and her personal view on his capacity to be deposed. Her personal views on these matters would not have resulted in her successfully opposing the deposition application, and there was no legitimate basis for the third defendant, as an interested party,  to interject herself into the application concerning  Mr Curin;

(d)the third defendant’s personal views were unnecessary to the deposition application,  and  opposition  to  the  application  was  only  filed  on  1 November 2023 by Mr Curin  based  on  the  expert  evidence  of  Dr Kenealy.

[12]      As to Dr Cheung’s fees, the plaintiffs submit that the evidence of Dr Cheung clearly benefits the first and second defendants (the trusts) and beneficiaries as he has gone further and expressed his medical opinion as to the likely lack of capacity of  Mr Curin to act as trustee, and Mr Curin has now resigned as trustee of the Elizabeth Curin Trust and advisory trustee of the John Curin Trust. These costs should be met by the first and second defendants.

Result

[13]I am of the view that:

(a)Costs in respect of the deposition application should be reserved pending resolution of the substantive matters;

(b)Dr Cheung’s costs should also be reserved and be dealt with following the determination of the substantive matters.

[14]The reasons for these views are:

(a)the plaintiffs’ application to depose Mr Curin was withdrawn as a result of expert evidence obtained by Mr Curin’s advisors, not because of the opposition provided by the third defendant as to her personal views;

(b)there is no clear benefit of Dr Cheung’s evidence to the first and second defendants and beneficiaries at this stage of the proceedings and these costs should be reserved to be dealt with on determination of the substantive matters and should not be paid by the first and second defendants at this stage.

…………………………….. Associate Judge Taylor

Solicitors:

Glaister Ennor (Paul McKendrick), Auckland, for the Plaintiffs

McVeagh Fleming (G Ireland), Auckland, for the First and Second Defendants TGT Legal (Stephen Law), for the Third Defendant

Claymore Partners Limited (James D Ryan), Auckland, litigation guardian for Mr John Richard Curin

Counsel:

Vanessa Bruton KC, Devonport, Auckland, for the Plaintiffs

Jeremy Johnson/Sid Dymond, Auckland, for the First and Second Defendants David Bigio KC/JWH Little, Auckland, for the Third Defendant

Zara A Matheson, Barrister, as litigation guardian for Mr John Richard Curin