De Rooy v Coleman

[2024] NZHC 1002

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-000069

[2024] NZHC 1002

IN THE MATTER OF

the Estate of Johan Frans De Rooy

BETWEEN

ROBERT JACQUES DE ROOY

Plaintiff

AND

ALAINE JANNETTE COLEMAN

Defendant

Hearing:	On the papers
Appearances:	D P Adams for the Plaintiff A Coleman in Person
Judgment:	30 April 2024

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 30 April 2024 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

WRMK Lawyers, Whangarei

DE ROOY v COLEMAN [2024] NZHC 1002 [30 April 2024]

[1]                 This case is about determining the true final wishes of Johan de Rooy (also known as John de Rooy) (the deceased). The deceased’s brother Robert de Rooy seeks probate of the deceased’s will dated 19 October 2011 (the 2011 Will), pleading that the deceased’s will dated 11 June 2021 (the 2021 Will) is invalid because it was brought about by Alaine Coleman’s undue influence. Ms Coleman denies any undue influence.

[2]                 In a judgment released on 9 April 2024, this Court determined Mr R de Rooy’s interlocutory application for orders striking out paragraph 7 of Ms Coleman’s amended statement of defence dated 10 October 2023; and requiring her to provide further and better particulars.1 In paragraph 7, Ms Coleman alleged that the 2011 Will is invalid because it was procured by the undue influence of Mr R de Rooy.

[3]                 Shortly before  the  hearing,  in  a  memorandum  filed  on  1  April  2024,  Ms Coleman agreed to remove the allegation. With that, much of the application for further and better particulars fell away. Of the two remaining aspects, one was addressed adequately by Ms Coleman’s response on 3 April 2024. I found against Mr R de Rooy on the other, as I considered it to be a request for evidence or an interrogatory.

[4]This judgment determines costs on Mr R de Rooy’s application.

Submissions

[5]                 Mr R de Rooy  seeks  2B  costs  with  a  30%  uplift,  plus  disbursements.  Mr Adams submits that Ms Coleman’s allegation (which he describes as a counterclaim) that the 2011 Will is invalid due to undue influence was without merit and forced Mr R de Rooy’s application. He submits that Ms Coleman was given ample opportunity to remove the counterclaim and that she chose to do so only a short while before the 8 April hearing (and after submissions were filed). He says that he proposed that Ms Coleman agree to remove the allegation by way of a joint memorandum in November 2023. He says that had Ms Coleman signed the joint memorandum,

1      De Rooy v Coleman [2024] NZHC 731.

Mr R de Rooy would not have had to incur the costs of making the application and preparing submissions.

[6]                 In response, Ms Coleman submits that Mr R de Rooy’s interlocutory application was unnecessary because her allegation at paragraph 7 of her amended statement of defence that the 2011 Will is invalid was not a counterclaim and should simply have been ignored as an “irrelevant fact”. She says that she stated in a memorandum to the Court dated 12 December 2023 that she opposed having an interlocutory hearing for a non-existent counterclaim.

Legal principles

[7]                 In general, the party who fails with respect to an interlocutory application should pay costs to the party who succeeds.2 An unsuccessful litigant in person is liable to pay costs to a represented party in the usual way.3

[8]                 The Court may order an increase to the ordinary scale costs payable to the successful party if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding, or step in it, including by:4

(a)taking or pursuing an unnecessary step an argument that lacks merit; or

(b)failing, without reasonable justification to accept a legal argument; or

(c)failing, without reasonable justification, to accept an offer of settlement.

Discussion

[9]                 Ms Coleman’s allegation of undue influence in relation to the 2021 Will was discussed at a case management conference in August 2023. Mr Adams indicated that if Ms Coleman included such a counterclaim in her amended pleading Mr R de Rooy

2      High Court Rules 2016, r 14.2.

3      David Bullock & Tim Mullins, Law of Costs in New Zealand (LexisNexis, Wellington, 2022 at p 50).

4      High Court Rules 2016, r 14.6.

would be required to apply to strike it out as disclosing no legally arguable cause of action and being likely to cause unnecessary prejudice and delay. The Court encouraged Ms Coleman to take advice on the point.5

[10]             In October 2023, Ms Coleman filed and served an amended statement of defence which pleaded at paragraph 7 that the 2011 Will is invalid because it was procured by the undue influence of Mr R de Rooy.

[11]             There followed an exchange of correspondence  between  Mr  Adams  and Ms Coleman in which Mr Adams sought to clarify whether Ms Coleman was pursuing a counterclaim in relation to the 2011 Will. If so, Mr Adams requested further particulars in relation to the claim. Ms Coleman declined to remove the allegation, or to provide further particulars, stating that she had been advised that she did not need to develop the counterclaim further at that stage.

[12]             This required Mr de Rooy to apply to have the allegation struck out before the Court’s timetable for interlocutory applications passed on 22 November 2023.

[13]             Ms Coleman opposed the application, filing a notice of opposition in which she said that paragraph 7 of her amended statement of defence was “simply a response to the plaintiff’s statement of claim, and should not be regarded as a formal counterclaim, and therefore paragraph 7 should be left in place. It was written by my legal advisor”. She also pleaded that “the plaintiff’s undue influence in 2011 appears to be the basis of his incorrect explanation that the defendant might have done the same as he did”.

[14]             Therefore, until Ms Coleman filed her memorandum the week before the interlocutory hearing, in which she agreed to amend paragraph 7 to remove the undue influence allegation, her stance was to refuse to remove the allegation, ostensibly on the basis that it was not a formal counterclaim, and suggest that it be ignored.

5      Minute of Associate Judge Gardiner dated 29 August 2023.

[15]             It was not unreasonable of Mr R de Rooy to require clarity as to whether the validity of the 2011 Will was contested by Ms Coleman in this proceeding. Confusingly, Ms Coleman appeared to accept that this allegation was irrelevant to the proceeding, but at the same time she refused to amend her statement of defence to remove it. I consider that this conduct was unreasonable and did force Mr R de Rooy to make what transpired to be an unnecessary application over a matter that could have been resolved by consent in November 2023 had Ms Coleman acted reasonably.

[16]             Accordingly, I order Ms Coleman to pay Mr R de Rooy’s costs on a 2B basis of $5,616.50 with a 10% uplift of $562, giving a total of $6,178.50 together with disbursements of $500.

Associate Judge Gardiner