Du Preez v Estate of Doornekamp-Wellman

[2022] NZHC 2303

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-14

[2022] NZHC 2303

BETWEEN

WILLEM DU PREEZ

First Plaintiff

GETTA SNIJDERS
Second Plaintiff

AND

ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN

First Defendant

PETER CRELLAN KELLY (as Executor) Second Defendant

PETER CRELLAN KELLY, PPPRA

Property & Welfare (discharge) Third Defendant

PETER CRELLAN KELLY (as nephew)

Fourth Defendant

Hearing:	(On the papers)
Appearances:	W du Preez (First Plaintiff) in person G Snijders (Second Plaintiff) in person R L Powell for Defendants
Judgment:	9 September 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

DU PREEZ v ESTATE BA ANNE DOORNEKAMP-WELLMAN [2022] NZHC 2303 [9 September 2022]

[1]                 Following my judgment of 19 July 2022 striking out the plaintiffs’ amended statement of claim in its entirety, Mr Kelly seeks an order for costs.1

[2]                 The strike out was based on the proceedings issued by the plaintiffs being an abuse of process given they had entered into a comprehensive full and final settlement agreement with Mr Kelly dated 2 November 2021.

[3]Clause 10 of the settlement agreement provides:

If the Agreement is breached by any of the [plaintiffs], [the plaintiffs] will be jointly and severally liable for the breach (including but not limited to all enforcement and collection costs on a solicitor/client basis) …

[4]                 The defendants in applying to strike out the plaintiffs’ claim were seeking to enforce the full and final settlement nature of the settlement agreement.

[5]                 The Court may order a party to pay indemnity costs if the party claiming costs is entitled to such costs under a contract.2

[6]                 The quantum of indemnity costs and disbursements claimed is $22,844.53. This proceeding was commenced on 21 December 2021. All of the invoices claimed post-date the issuing of the proceedings.

[7]                 Costs on a 2B basis plus disbursements would be $16,947.68. I accept the submission of Ms Powell, counsel for the defendants, that in context the indemnity costs are reasonable given that scale costs are intended on a rough and ready basis to represent two-thirds of a reasonable fee.

[8]                 Accordingly, I am satisfied Mr Kelly has the benefit of an indemnity costs clause entitling him to recover costs on a solicitor/client basis. The fees he incurred in enforcing the settlement agreement are reasonable, as are the disbursements. As noted, all the fee notes produced post-date the issue of the proceedings.

1      De Preez v Estate of Barbara Doornekamp-Wellman [2022] NZHC 1722.

2      High Court Rules 2016, r 14.6(4)(e).

[9]                 The costs memorandum filed by the plaintiffs in opposition does not really engage   with    Ms Powell’s    memorandum.     The   plaintiffs’   memorandum    is a wide-ranging critique of the circumstances leading up to the settlement agreement leading to the plaintiffs’ claim be struck out and the history between the parties. It also raises affordability issues for the plaintiffs, that is, whether they would be able to meet the costs award without having to sell their home. That is an issue for enforcement. The plaintiffs may qualify for a Debt Repayment Order and should speak to a Community Law Centre or the New Zealand Insolvency and Trustee Service in that regard. However, ability to pay is not of itself a ground for denying Mr Kelly his entitlement to indemnity costs.

[10]Accordingly, there is an order that plaintiffs are to pay to Mr Kelly the sum of

$22,844.53 being costs and disbursements payable by them following my judgment of 19 July 2022.

Associate Judge Lester

Solicitors:

Lance Pratley Law, Wellington (for Defendants)

Copy to counsel:
R : Powell, Barrister, Christchurch (for Defendants)

Copy to:

W du Preez (self-represented First Plaintiff) G Snijders (self-represented Second Plaintiff)