Dodssuweit v Olivier
[2019] NZHC 2707
•22 October 2019
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 2019.
[5] In relation to this last point, the plaintiffs say that although their claims were unsuccessful, principles applicable in estate litigation, which can displace the guiding principle that costs follow the event, ought to apply in this case. They say the litigation originated in “the fault of the testator”, being a recognised exception to the rule that costs follow the event. They therefore seek an order that their own costs are payable out of Mrs Dodssuweit’s estate or, given the value of the estate is limited, out of trust funds. In the alternative, the plaintiffs say there were reasonable and sufficient grounds for them to question Mrs Dodssuweit’s capacity (and a related issue as to whether she had been the subject of undue influence), and in those circumstances, while they would need to bear their own legal costs, they ought not to be ordered to pay anything to the defendants by way of costs.
[6] The defendants say there is no proper basis for either approach to be applied in this case. They say the litigation did not originate through any fault of Mrs Dodssuweit, but arose because of steps taken by the second-named plaintiff to (wrongly) have her admitted to the Mental Health Unit of Tauranga Hospital shortly before her death, which then provided a basis to question her capacity. In a similar vein, the defendants say that, taking into account the plaintiffs’ knowledge of Mrs Dodssuweit’s eccentric personality, and the second-named plaintiff’s steps to have her admitted to the Mental Health Unit, there were not sufficient and reasonable grounds for the plaintiffs to question her capacity in any event. The defendants therefore say the plaintiffs ought to bear their own legal costs, and that costs as between the plaintiffs and defendants ought to follow the event in the ordinary way.
[7] If the Court does award costs in favour of the defendants, the plaintiffs say that the costs awards should be significantly reduced from what would otherwise be available. In particular, the plaintiffs say any award in favour of the first and third defendants ought to be reduced (or refused altogether) on account of their conduct, particularly in the period after Mrs Dodssuweit’s death but prior to the proceedings being commenced. The plaintiffs also say that any costs award in the second defendant’s favour should be reduced and/or refused, given aspects of her evidence before the Court were false.
[8] Countering this, the first and third defendants seek an award of scale costs and say there is no reason to reduce that award. The second defendant also seeks scale costs, and says that the award for steps taken late in the proceedings should be uplifted by 50 per cent, because of the plaintiffs’ unreasonable failure to accept a settlement offer made at that time.
[9]The issues for determination are accordingly:
(a)Whether the plaintiffs’ own costs ought to be met out of the estate and/or trust funds, and/or that the plaintiffs be relieved of a costs order in favour of the defendants.
(b)If a costs award is to be made in the second defendant’s favour, the quantum of that award, and in particular, whether any aspects of the second defendant’s costs ought to be awarded on an increased basis.
(c)If a costs award is to be made in the first and third defendants’ favour, whether their conduct justifies a reduction in that costs award.
Costs paid out of the estate/trust funds – applicable legal principles
[10] All matters as to costs are at the discretion of the Court.4 In the context of estate litigation, however, it has long been recognised that what might otherwise be the “ordinary” approach to costs in civil litigation can be displaced in cases of contested wills.
[11]The leading statement of principle in this jurisdiction is that of Stringer J in
Re Paterson:5
The Court has a general discretion as to costs in all actions and proceedings before it, but there are certain well-established principles upon which that discretion should be exercised in cases of contested wills. They are as follows: (i.) If the litigation originates in the fault of the testator—eg by the state in which he left his testamentary writings, or by his eccentric or irrational habits and mode of life—or of those interested in the residue the costs may properly be paid out of the estate. (ii.) If there be sufficient and reasonable ground,
4 High Court Rules 2016, r 14.1(1).
5 Re Paterson (Deceased) [1924] NZLR 441 at 442-443.
looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent. (iii.) Unless the circumstances of the case are such as to bring it within one of the foregoing exceptions, the general rule that costs should follow the event ought to prevail.
[12] This statement was approved and applied more recently by the Court of Appeal in Loosely v Powell.6 The Court observed that the application of the exceptions in Re Paterson is the subject of the Court’s overriding discretion.7
Costs paid out of the estate/trust funds – discussion
Did the litigation originate “in the fault” of Mrs Dodssuweit?
[13] Recent examples which provide some guidance on what will (and will not) be considered “fault on the part of the testator” include the following:
(a)A testator taking steps to have a will prepared, but dying unexpectedly prior to that process being completed (and thus her “affairs were not fully in order”), was not considered fault.8
(b)The fact the proceedings arose due to a lack of uncertainty in some provisions of the will was held to justify costs being paid out of the estate.9
(c)A testator failing to make provision for certain parties as promised amounted to “fault”, leading to costs being paid out of the estate.10
(d)A testator’s desire to avoid conflict, and thus failure to attend to formalities which would have made a draft will valid, was sufficient for costs to be paid from the estate.11
6 Loosely v Powell [2018] NZCA 73.
7 At [7].
8 Winterburn v Wilson [2016] NZHC 2687.
9 Crawford v Phillips [2018] NZCA 351.
10 Ireland v Grant [2016] NZHC 2752.
11 Wardill v Anderson [2017] NZHC 306.
(e)The fact that the testator failed to leave a will was one factor, among others, for making costs awards out of the estate.12
[14] I am not satisfied the litigation in this case was due to the “fault” of Mrs Dodssuweit, either wholly or substantially.
[15] I found that Mrs Dodssuweit had capacity to enter into her last will and the inter vivos transactions. I found that she clearly intended to benefit the second defendant to a much greater extent than the plaintiffs. I found that at least from Mrs Dodssuweit’s perspective, there was a reasonable basis for her to take the approach she did. In other words, her approach was not irrational or unreasonable in the context of the facts as she understood them at the time. There is no suggestion her wishes were unclear, and her papers were ‘fully in order’, in terms of detailed and formal documentation having been entered into.
[16] Mr Bryers, counsel for the plaintiffs, submits that Mrs Dodssuweit ought to be found at fault in causing the litigation, as she knew she was favouring one child at the expense of the others, and was aware her “kids would fight” that outcome as a result. But having been aware of the moral claims on her estate, and, with capacity, taken a rational and not unreasonable decision in the circumstances as she saw them, the litigation cannot, in my view, be categorised as a result of fault on her part. Were that to be so for the purposes of costs orders, then very many cases in which disappointed parties challenge what is otherwise found to be an unimpeachable decision on the part of a testator would result in costs awards out of the estate, to the detriment to those parties with valid claims on the estate.
[17] I therefore do not consider it appropriate to make an order that all or part of the plaintiffs’ costs are to be paid out of Mrs Dodssuweit’s estate. I accordingly do not need to consider the related issue of whether, had the first principle in Re Paterson been triggered, it could justify an order that the plaintiffs’ costs be met out of trust funds.
12 Emery v Thorn [2018] NZHC 3164.
Were there reasonable grounds to challenge Mrs Dodssuweit’s capacity/suggest undue influence?
[18] At least in relation to Mrs Dodssuweit’s will, at trial, the second defendant accepted that Mrs Dodssuweit’s capacity was reasonably in issue. Mrs Dodssuweit was, after all, a patient of the Mental Health Unit at Tauranga Hospital at the relevant time.
[19] The defendants submit that, despite capacity having been reasonably put in issue at trial, the second exception in Re Paterson nevertheless does not apply. Counsel for the defendants13 say the real reason Mrs Dodssuweit was admitted to the Mental Health Unit at Tauranga Hospital was the second-named plaintiff’s “invention” of Mrs Dodssuweit’s attempt to commit suicide, to encourage her compulsory admission to hospital (so as to trigger Mrs Dodssuweit’s enduring power of attorney, then held by the second-named plaintiff). Counsel also say the plaintiffs were well aware of Mrs Dodssuweit’s eccentric personality, which I found clouded the initial assessment of Mrs Dodssuweit’s mental health.14
[20] Mr Bryers responds that the Court made no positive finding that the second- named plaintiff’s actions led to Mrs Dodssuweit’s admission to the Tauranga Mental Health Unit. Further, he says that her admission to hospital was a result of a detailed and thorough assessment by trained medical professionals in any event.
[21] I consider there is merit in the case advanced by both parties on this point. I did have concerns in relation to the second-named plaintiff’s insistence that his mother had told him she had tried to commit suicide and wanted to try again, though I made no positive finding that this was false evidence given by him.15 But as Mr Bryers notes, the point remains that irrespective of the second-named plaintiff’s actions, Mrs Dodssuweit was admitted as an in-patient to the Mental Health Unit at Tauranga Hospital, following a fairly detailed assessment and admission process. The first- named plaintiff in particular would have had a genuine basis to query her mother’s capacity at that time.
13 Mr Brittain QC for the second defendant and Ms Bruton QC for the first and third defendants.
14 Substantive Judgment, above n 1, at [186]-[190].
15 At [65], [74], [185], [187](c).
[22] I am also of the view that there was a reasonable basis for the plaintiffs to be concerned at the prospect of the second defendant exerting undue influence on their mother, and at what was happening in relation to her estate and assets after her death.16 From relatively early on in her admission to Tauranga Hospital, neither plaintiff was permitted to visit or engage with Mrs Dodssuweit. There were ongoing disputes between the plaintiffs and the second defendant, in the context of which it would not have been wholly unreasonable for the plaintiffs to suspect the second defendant was trying to “turn” their mother against them.
[23] These concerns would have been justifiably amplified by the secrecy surrounding Mrs Dodssuweit’s discharge from hospital and events which followed. For example, it is highly unfortunate that, although apparently following her mother’s wishes, the second defendant did not tell her brother and sister about their mother’s discharge from hospital into palliative care, or that their mother had ultimately passed away. They were also not aware of the status of her will, or of any of her assets. The steps taken thereafter, and in particular what appeared to be a reluctance on the part of the second (and first) defendant to provide a copy of Mrs Dodssuweit’s last will to the plaintiffs (absent potential court orders), the swift sale of the property which formed a large part of the trust assets (despite the defendants being on notice there were claims in relation to the validity of the underlying transactions which had put the property into trust), and attempt to obtain probate without notice (and without the capacity concerns being ventilated), will have further exacerbated these concerns.
[24] I am also unpersuaded that the second principle in Re Paterson is not applicable in this case because the issues of capacity, undue influence and unconscionable bargain related to the inter vivos transactions, as well as the will. While it is correct that Re Paterson relates to challenged wills, I do not see why the principles ought not to apply when the transactions in issue are a will and the establishment of a trust as in this case. Both the will and the documents establishing the trust were executed by Mrs Dodssuweit contemporaneously, as part of the same overall “package” of organising her affairs when she knew her condition was terminal. In this context, it would be artificial to separate out the will and the inter vivos
16 Despite the claim not being pressed in closing arguments.
transactions, particularly when the principles set out in Re Paterson operate as a guide to the Court’s overriding discretion on costs.
[25] In summary, reflecting my concerns at the steps taken by the second-named plaintiff in connection with his mother’s admission to hospital, that the plaintiffs were unsuccessful, and the claim of undue influence was abandoned at the conclusion hearing; but coupled with the defendants’ secrecy and actions described at [23] above, I consider a fair result is not that costs lie where they fall, but that there is a costs award against the plaintiffs in favour of the second defendant, but on a reasonably heavily discounted basis. Considering matters “in the round,”17 I apply a discount of 70 per cent. This means the plaintiffs are to make a modest contribution only to the second defendant’s costs, which I consider a fair outcome, given the nature and outcome of the litigation.18
[26] I also agree with Mr Bryers that the second defendant’s counterclaim should be excluded from the costs award, given two of the three causes of action did not proceed, and the third (probate of Mrs Dodssuweit’s last will) was effectively a formality after trial. I do not agree, however, that the costs award should be reduced given some of the second defendant’s evidence at trial was not credible. That was a minor matter only, which will not have had any impact on the plaintiffs’ own costs. And as I recorded in my substantive judgment, I did not find the second defendant’s and the plaintiffs’ evidence at trial particularly helpful.19
Should the second defendant’s costs be increased given a Calderbank offer?
[27] The second defendant seeks an order that her costs award for steps 32, 33, 43 and 35 be increased by 50 per cent, given the plaintiffs’ failure to accept a pre-trial offer made on a “without prejudice save as to costs” basis.
17 Water Guard NZ Ltd v Midgen Enterprises Ltd [2017] NZCA 36 at [18]; Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [18].
18 For the avoidance of doubt, this discount is not to apply to disbursements. See Kent Sing Trading Company Ltd v JNJ Holdings Ltd [2019] NZCA 388 at [136]: “A disbursement may only be disallowed or reduced if it is considered disproportionate in the circumstances of the proceeding.”
19 Substantive Judgment, above n 1, at [13].
[28] On 5 November 2018,20 the second defendant (through her counsel), wrote to the plaintiffs offering to settle the proceedings. The proposal envisaged all assets from Mrs Dodssuweit’s estate passing to the trust,21 the first and third defendants’ solicitors’ and counsel’s reasonable fees being paid from the trust funds, with the balance being applied five per cent to the first-named plaintiff; 20 per cent to the second-named plaintiff, and the balance to the second defendant.22 All other costs lie were to lie where they fell. Obviously, the offer comprised a better outcome for the plaintiffs than the outcome at trial.
[29]Despite this, however, I do not order increased costs because of the offer.
[30] It is important to consider the context in which an offer is made, in order to assess whether a failure to accept it was unreasonable and thus ought to sound in costs consequences. The onus is on the party claiming increased costs to persuade the Court that the award is justified. That party must satisfy the Court that the failure to accept the offer of settlement was unreasonable. Importantly, the reasonableness of the rejection is to be assessed at the time of the rejection, not just against the subsequent result at trial.23
[31] The second defendant’s offer was made very close to trial. If implemented, it would have reflected a payment of $35,000 to the first-named plaintiff and $141,000 to the second-named plaintiff (when he was to receive $100,000 under the inter vivos transactions in any event). Given the inevitable costs incurred by the plaintiffs to the point of the offer, it did not reflect anything significantly more than a “walk away” offer24 (or the payment of funds which would have inevitably have been consumed by legal costs). Further, the plaintiffs also made efforts to resolve the proceedings, with which the second defendant chose not to engage. In this context, the plaintiffs made a counter-offer in direct response to the 5 November 2018 offer. Despite this, and a
20 Approximately one month before trial.
21 Noting that the most valuable of Mrs Dodssuweit’s assets were already in trust in any event.
22 The rationale for the relatively small proportion to be applied to the first-named plaintiff reflected earlier wills of Mrs Dodssuweit, in respect of which capacity was not in issue, which made no or very little provision for the first-named plaintiff.
23 Easton Agricultural Ltd v Manawatu-Wanganui Regional Council, HC Palmerston North CIV- 2008-454-31, 22 December 2011, at [12].
24 Which effectively values a party’s prospects of success as zero.
further follow-up offer on 6 December 2018, the second defendant chose not to respond at all.
[32] Reflecting the above, there is a costs award in the second defendant’s favour against the plaintiffs in the sum of $23,291.58, as set out in the first schedule to this judgment.
Should the first and/or third defendants be awarded costs, and if so, should they be reduced as the plaintiffs suggest?
[33] As noted, the first and third defendants did not actively participate in the proceedings and abided the Court’s decision. I have ordered that their reasonable and proper (actual) costs may be paid out of the estate and trust funds respectively.25 If a costs award is made in their favour against the plaintiffs (and is paid), then it will only be the shortfall between the costs award and the actual (reasonable and proper) costs that are born by the estate and trust.
[34] I am satisfied that the above discussion as to the second principle in Re Paterson means that it is also not appropriate for costs between the plaintiffs and first and third defendants to lie where they fall. Ultimately, the plaintiffs’ claims were unsuccessful, and there is no doubt the first and third defendants, despite abiding the Court’s decision, had to take some steps in these proceedings, and incurred costs as a result.26
[35] Mr Bryers submits that given the first and third defendants’ conduct, any costs award should be significantly reduced as a result. The impugned conduct includes declining to provide documents to the plaintiffs or their solicitor in the period immediately after Mrs Dodssuweit’s death until the eve of an application for pre- commencement discovery; selling the property in trust despite being on notice of the
25 Though, because the Court had no visibility at the time of making that order of the costs the first and third defendant propose to pay out of the estate and trust, I ordered that prior to any such payments, the first and third defendant were to submit to the Court for review details of the proposed quantum of costs to be recovered together with supporting invoices.
26 Each of the first and third defendants claims scale costs for commencement of defence, an interlocutory notice for orders that their costs may be paid in the first instance from the estate/trust funds (which ultimately did not proceed), the provision of discovery and memoranda submitted to the Court. Each of the first and third defendants claims $14,115.50 (including disbursements).
plaintiffs’ challenge to the trust arrangements; and requiring the plaintiffs to apply for a freezing order in respect of the proceeds of sale, which was ultimately agreed without a formal hearing. Mr Elvin, the plaintiffs’ then solicitor, gave evidence at the hearing of these matters and his concerns in relation to them. As I noted in my substantive judgment, I found Mr Elvin to be a credible and reliable witness.27
[36] I accordingly do have some concern at the approach which appears to have been taken at times by the first and third defendants, which manifested in a fairly aggressive approach taken after Mrs Dodssuweit’s death, but prior to the substantive proceedings being commenced. Be that as it may, however, these matters occurred prior to the substantive proceedings, and costs are generally to reflect how parties have acted during litigation, not before it.28
[37] But, for the same reasons set out above for relieving the plaintiffs from some of the second defendant’s costs, I am of the view that a percentage reduction should also apply to the costs award in favour of the first and third defendants. As noted, it was not wholly unreasonable for the plaintiffs to have brought these proceedings (despite being unsuccessful), and the first defendant in particular was closely involved in the actions described at [23] and [35] above, which not unreasonably exacerbated the plaintiffs’ concerns. Given this, I consider that the discretion envisaged in Re Paterson is appropriately exercised in relation to the first and third defendants’ costs, even though they abided the Court’s decision and were therefore not strictly “successful opponents” as referred to in Re Paterson. But the reduction should be smaller than that in relation to the second defendant. I set it at 40 per cent. And from the first and third defendant’s perspective, this reduction does not affect their own cost recovery in any event, given they are permitted to recover their proper and reasonable actual costs from the estate and trust funds.
[38] In terms of the residual costs award in favour of the first and third defendants, Mr Bryers suggests that steps associated with the first and third defendants’ application
27 Substantive Judgment, above n 1, at [50].
28 See R Osborne and others, McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [HR14.1.03] citing Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188, upheld on appeal [2007] NZSC 26, [2007] 3 NZLR 169 (SC); Thames-Coromandel District Council v Coromandel Heritage Protection Society Inc [2009] NZCA 204, (2009) 19 PRNZ 365 at [10].
for orders for costs to be paid out of the estate and/or trust fund ought not to feature in the costs award, as the application was not pursued at that time (and was effectively granted by consent post-trial). I disagree. It was not unreasonable for the first and third defendants to apply for such orders when they did, particularly given their intention to abide the decision of the Court. And ultimately those applications were successful, albeit with no active opposition.
[39] I do not consider it is appropriate, however, for two separate step 22s (interlocutory application, at 0.6 per day) to be included in the first and third defendants’ costs award. The content of each interlocutory application was effectively the same, such that it would not have taken “double” time to prepare them. I accordingly reduce each step 22 in the first and third defendants’ costs schedule to
0.3 days.
[40] Mr Bryers also notes that the first and third defendants were acting in concert and there is no justification for them both to be awarded costs, being represented by the same counsel, and Mr Olivier giving evidence on behalf of both the first and third defendants in support of their applications for payment of costs. In relation to the latter point, as noted above, I have reduced, effectively by half, the amounts claimed for the interlocutory applications for payment of costs. Further, other than the commencement of defence and the interlocutory applications for payment of costs, each of the other steps claimed by the first and third defendants is claimed only once. The total costs claimed are then divided by two, rather than the overall total being sought by each defendant individually.
[41] Taking into account the percentage reduction set out at [37] above, and the modest adjustments to the steps for which the first and third defendants seek costs, there is accordingly a costs award (including disbursements) to each of the third defendants in the sum of $8,495.90, on the basis set out in the second schedule to this judgment.
Fitzgerald J
Schedule One – costs payable to the second defendant
Costs Item Step Allocated
day
Cost 2 Commencement of defence 2 $4,460 10/11 First case management conference
(preparation and memo)
0.8 $1,784 13 Appearance at case management
conference
0.3 $669 20 List of documents on discovery 2.5 $5,575 21 Inspection of documents 1.5 $3,345 30 Preparation of briefs 2.5 $5,575 32 Preparation of list of issues, authorities,
and common bundle
2 $4,460 33 Preparation for hearing 3 $6,690 34 Appearance at hearing by principal
counsel
5 $11,150 35 Appearance at hearing by junior counsel 2.5 $5,575 Total costs $49,283 Total costs less 70 per cent $14,784.9 Disbursements Filing fee – defence $110 Filing fee – counterclaim $540 Photocopying $250 Dr Casey’s fee $7,606.68 Total disbursements $8,506.68 Total (reduced) costs and disbursements $23,291.58
Schedule Two – costs payable to the first and third defendants
Costs Item Step Allocated day Cost
2 Commencement of defence (first defendant) 2 $4,460 2 Commencement of defence (third defendant) 2 $4,460 11 Filing memorandum for case management conference 0.4 $892 22 Interlocutory application by first defendant for payment of costs (reduced by 50 per
cent)
0.3 $669 22 Interlocutory application by third defendant for payment of costs (reduced by 50 per
cent)
0.3 $669 10 Preparation for case management conference 0.4 $892 24 Preparation of written submissions in support of costs applications 1.5 $3,345 25 Preparation of bundle 0.6 $1,338 22 Interlocutory application by first and third defendants for an order striking out parts of pleading 0.6 $1,338 20/36 Affidavit of Marie-Louise Olivier on behalf of KM Dod Trustees Ltd regarding discovery (one day claimed only) 1 $2,230 20/36 Affidavit of Kevin Norman Olivier regarding discovery (one day claimed only) 1 $2,230 11 Preparation of memorandum in relation to strike-out application, costs and representation 0.4 $892 9 Statement of defence to amended statement of claim 0.6 $1,338 Total costs $24,753 Total costs less 40 per cent $14,851.8 Disbursements Filing fee for statement of defence x 2 $220 Interlocutory applications x 3 $1500 Bundle/courier costs $420 Total disbursements $2,140 Total (reduced) costs and disbursements $16,991.80 Amount payable to each of first/third defendants $8,495.90
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