Davey v Cardinali

[2023] NZHC 2782

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-33

[2023] NZHC 2782

BETWEEN

HOWARD ADRIAN DAVEY

Plaintiff

AND

MYRA ANNE CARDINALI and ARLENE

RENEE LUANNA DAVEY as executors and trustees of the ESTATE OF HOWARD ALBERT DAVEY

First Defendants

MYRA ANNE CARDINALI and ARLENE

RENEE LUANNA DAVEY as executors and trustees of the ESTATE OF KATHLEEN DAVEY

Second Defendants

ARLENE RENEE LUANNA DAVEY
Third Defendant

MYRA ANNE CARDINALI

Fourth Defendant

Judgment:

(On the papers)

5 October 2023

JUDGMENT OF BREWER J

(Costs)

This judgment was delivered by me on 5 October 2023 at 11 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Braun Bond & Lomas (Hamilton) for First and Second Defendants Cowan Law (Auckland) for Third and Fourth Defendants

DAVEY v CARDINALI [2023] NZHC 2782 [5 October 2023]

Introduction

[1]This is a costs judgment.

[2]        Howard Adrian Davey, the plaintiff, is the son of Howard Albert Davey and Kathleen Davey, both deceased. The defendants, Myra Cardinali and Arlene Davey, are the sisters of the plaintiff and the children of Mr Davey Senior and Mrs Davey. The defendants are the executrixes and trustees of their parents’ estates (the Estates).

[3]        The plaintiff brought proceedings against the defendants both personally and in their capacity as executrixes of the Estates. The plaintiff applied for an injunction restraining any further distributions of the Estates so that there could be proper determination of his quantum meruit claim and claims under the Law Reform (Testamentary Promises) Act 1949 and Family Protection Act 1955. Justice Campbell eventually struck out the proceedings after the plaintiff failed to comply with his “unless order” to fix various deficiencies with his filings.1 The Judge directed that the defendants were entitled to costs and if costs could not be agreed that the parties were to file costs memoranda. No such agreement has been reached and the defendants have filed memoranda. The plaintiff has not filed any costs memorandum and has now missed the filing deadline.

[4]        The defendants, as executrixes and trustees of the Estates, seek costs against Mr Davey on a mixed 2B and 2C basis and with a 30 per cent uplift. However, they accept this measure of costs would exceed their actual costs and reduce their final claimed amount accordingly.

[5]        The defendants also seek costs in their personal capacities. They seek an award on a 2B basis and with an uplift of 25 per cent. They also ask the Court to make a further order that the costs award should be directly payable from the plaintiff’s interest in the Estates.

Defendants’ submissions as executrixes and trustees

[6]Mr Bond makes three primary submissions:

1      Davey v Cardinali HC Rotorua CIV-2021-463-33, 29 May 2023.

(a)first, the proceeding should, in part, be classified as 2C as the plaintiff’s filings and discovery resulted in unusually time-consuming work;

(b)second, the plaintiff refused a settlement offer to discontinue the proceeding on a no issue as to costs basis, save for…