IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2017-470-114
[2019] NZHC 2707
IN THE ESTATE of KARIN MARGITE DODSSUWEIT BETWEEN
CORNELIA and STEPHAN DODSSUWEIT
Plaintiffs
AND
KEVIN NORMAN OLIVIER
First Defendant
BETTINA DODSSUWEIT
Second DefendantKM DOD TRUSTEES LIMITED
Third Defendant
Hearing: On the papers Counsel:
SP Bryers for plaintiffs
G Brittain QC for second defendant
VC Bruton QC for first and third defendantsJudgment:
22 October 2019
JUDGMENT OF FITZGERALD J
[As to costs]
This judgment was delivered by me on 22 October 2019 at 3pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:Holland Beckett, Tauranga (D Fraundorfer) Rejthar Stuart Law, Tauranga (P Stuart)
Priscilla Brown, Auckland
Dodssuweit v Olivier [2019] NZHC 2707 [22 October 2019]
Introduction
[1] The plaintiffs in these proceedings (who are brother and sister) challenged the last will of their mother (Mrs Dodssuweit), and certain inter vivos transactions entered into by her at the same time as the will. The will and transactions were executed a few weeks before Mrs Dodssuweit’s death from lung cancer, as part of a package by her to get her affairs in order. The effect of the will and the inter vivos transactions was to benefit the second defendant (the plaintiffs’ sister) to a much greater extent than the plaintiffs.
[2] The key issue in the proceedings was whether Mrs Dodssuweit had capacity to execute the will and enter into the transactions. After a week-long trial, I found that Mrs Dodssuweit had the requisite capacity.1 The plaintiffs’ claims therefore failed. This judgment deals with residual costs issues.
The current position on costs and key issues for determination
[3] The first and third defendants’ costs, at least as a matter of principle, are not in dispute. The first defendant was Mrs Dodssuweit’s solicitor at relevant times, and advised her on her will and the transactions. He is also the executor of Mrs Dodssuweit’s estate. The third defendant is the trustee of a trust established by Mrs Dodssuweit pursuant to the inter vivos transactions. Neither the first nor the third defendant actively participated in the proceedings,2 and they each abided the Court’s decision. There being no opposition, I have already ordered that their proper and reasonable actual costs may be paid out of Mrs Dodssuweit’s estate and trust funds respectively.3
[4] There is, however, a dispute as to what costs orders should be made as between the plaintiffs and the first and third defendants. Costs as between the plaintiffs and the second defendant are also in issue. There is also an issue as to whether the plaintiffs ought to bear their own legal costs, or whether they, or a portion of them, can also be met out of Mrs Dodssuweit’s estate and/or the trust funds.
1 Dodssuweit v Olivier [2019] NZHC 1226 [Substantive Judgment].
2 Though the first defendant was called by the second defendant to give evidence.
3 In a minute dated 15 July…
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CaseChat Overview and Summary
The primary issue for the court to determine was whether the plaintiffs' own costs should be met out of the estate and/or trust funds, and/or whether the plaintiffs should be relieved of a costs order in favour of the defendants. The court also needed to decide the quantum of the costs award in the second defendant's favour, and whether the first and third defendants' conduct justified a reduction in their costs award.
The court found that the litigation did not originate in the fault of Mrs Dodssuweit, and therefore, the plaintiffs' costs should not be paid out of the estate. However, the court acknowledged that there was a reasonable basis for the plaintiffs to question Mrs Dodssuweit's capacity and suspect undue influence by Bettina. As a result, the court ordered that the plaintiffs should contribute to the second defendant's costs, but on a heavily discounted basis of 70%. The court also decided not to increase the second defendant's costs award despite a pre-trial settlement offer made by the second defendant, as the plaintiffs' rejection of the offer was not unreasonable.
Regarding the first and third defendants' costs, the court found that a percentage reduction should apply due to their conduct prior to the commencement of the proceedings. The court set the reduction at 40%, resulting in a costs award of $8,495.90 to each of the first and third defendants.
In summary, the court ordered that the plaintiffs contribute to the second defendant's costs on a discounted basis, while also reducing the costs award for the first and third defendants due to their conduct prior to the commencement of the proceedings. The final orders are set out in the schedules attached to the judgment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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