Dodssuweit v Olivier

[2019] NZHC 2707

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 Defendant

KM 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 defendants

Judgment:

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…