De Gregorio v Surridge - [2019] NZHC 2842

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-602870

[2019] NZHC 2842

UNDER the Administration Act 1969

IN THE MATTER

of the Estate of Wilbur Surridge

BETWEEN

NUNZIO DE GREGORIO

Plaintiff

AND

ANNE JOSEPHINE SURRIDGE

First Defendant

PAUL HOUSTON SURRIDGE

Second Defendant

CIV-2018-485-65

BETWEEN

MARION JOAN PEARSON

Plaintiff

AND

DAVID VANCE AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF WILBUR GEORGE SURRIDGE

Defendant

Hearing: On the papers

Counsel:

No appearance for Plaintiff (CIV-2017-485-602870)

C T Patterson for First Defendant (CIV-2017-485-602870) S J Iorns for Second Defendant (CIV-2017-485-602870) N Levy for Plaintiff (CIV-2018-485-65)

L C A Farmer and D R Green for Defendant (CIV-2018-485-65)

Judgment:

5 November 2019

JUDGMENT OF CLARK J (COSTS)

DE GREGORIO v SURRIDGE [2019] NZHC 2842 [5 November 2019]

Introduction

[1] This consolidated proceeding concerned the estate of Lofty Surridge (Lofty). It included challenges to the validity of a will executed by Lofty on 21 January 2014 (the 2014 will), both for lack of testamentary capacity and undue influence. The plaintiff, Mr de Gregorio, was named as executor under the 2014 will but did not take part in the substantive hearing. The main contestants were Lofty’s only son, Paul Surridge (Paul), and one of his daughters, Anne Surridge (Anne). Lofty’s other daughters, Jane, Judith and Josephine did not take active roles in the litigation. Paul was the proponent of the 2014, while Anne opposed it.

[2] The other aspects to the proceeding were a claim brought by Anne and her son under the Family Protection Act 1955 and a claim brought by Marion Pearson, Paul’s wife, attempting to revive a deed of assignment in her favour that Lofty had executed contemporaneous with the 2014 will.

[3] On 29 July 2019, I issued my decision upholding Anne’s challenges to the validity of the 2014 will on both grounds, I dismissed Ms Pearson’s claim as an abuse of process and I did not find it necessary to address the Family Protection Act claim.1 Lofty had executed an earlier will dated 16 October 2000 (the 2000 will). I granted probate of the 2000 will to Mr Vance, who I had earlier appointed as temporary administrator of the estate.2

[4] I invited the parties to confer on the matter of costs. If they could not reach agreement, Anne, as the successfully party, was to file a memorandum seeking costs. The parties have been unable to agree, and I am now in receipt of four memoranda: one from Anne, one from Paul, another from Anne in reply, and one from Mr Vance. Mr de Gregorio has not filed a memorandum.

1 de Gregorio v Surridge [2019] NZHC 1802.
2 de Gregorio v Surridge [2017] NZHC 2061.

Legal principles

[5] Costs are at the Court’s discretion but generally follow the event.3 The courts have, however, developed bespoke principles to deal with costs arising from proceedings concerning certain disputes over a will. There are occasions in which it is appropriate to award costs…

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 De Gregorio v Surridge

Details

AGLC: De Gregorio v Surridge [2019] NZHC 2842
Case: [2019] NZHC 2842
Decision Date: 5 November 2019

CaseChat Overview and Summary

The consolidated proceedings in De Gregorio v Surridge involved challenges to the validity of a will executed by Lofty Surridge, as well as claims under the Family Protection Act 1955 and an attempt to revive a deed of assignment. The primary dispute was between Lofty's son, Paul Surridge, and his daughter, Anne Surridge, over the 2014 will. The court had to determine the appropriate costs orders in light of the adversarial nature of the litigation and the principles governing costs in will disputes.

The legal issues revolved around whether costs should be paid from the estate or borne by the parties, and if so, how those costs should be calculated. The court considered principles from Re Paterson (Deceased), which outline when costs may be paid from the estate or borne by the parties, and recent Court of Appeal decisions that upheld these principles. The court also examined relevant High Court Rules and other case law that address costs in will disputes.

The court concluded that the proceeding was highly adversarial, with significant acrimony between the parties, which escalated costs disproportionately. As neither Paul nor Anne were acting in the interests of the estate as a whole, the court decided that costs should not be paid from the estate. Instead, Paul was ordered to pay Anne’s costs on a scale 2B basis, without an uplift, as his refusals to accept settlement offers were not without reasonable justification. The court also awarded increased costs against Marion Pearson, Paul’s wife, for pursuing an abuse of process. The court disallowed certain disbursements as they were not specific to the conduct of the proceeding. Finally, the court decided not to award costs to Mr de Gregorio, who had not sought costs and whose involvement in the litigation was minimal.

The final orders were that Paul was to pay Anne’s costs of $64,601.50 plus disbursements of $31,784.59. Marion Pearson was to pay increased costs of $10,704 plus disbursements of $372.53. All other parties’ costs were to lie where they fell.

Orders