Emery v Thorn - [2019] NZHC 278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000389

[2019] NZHC 278

UNDER The Declaratory Judgments Act 1908 and Property (Relationships) Act 1976

BETWEEN

ELIZABETH EMERY by her Litigation Guardian, DAVID DOMINIC RICE

Plaintiff

AND

LEO HAROLD THORN

First Defendant

TONY JOHN THORN

Second Defendant

Hearing: On the papers

Counsel:

A Gilchrist for the plaintiff D J Taylor for the defendants

Judgment:

27 February 2019

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Wednesday, 27 February 2019 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:Kiely Thompson Caisley, Auckland for the Plaintiff Ryan Law, Te Aroha for the First and Second Defendants

Counsel: A Gilchrist, Auckland for the Plaintiff
D J Taylor, Hamilton for the First and Second Defendants

EMERY v THORN [2019] NZHC 278 [27 February 2019]

[1] On 4 December 2018, I gave judgment for the plaintiff on her application that the actual and reasonable costs of an application for letters of administration filed by her in the High Court should be met from the estate of her de facto partner, who had died intestate. I directed that her actual and reasonable costs should be reimbursed from the estate. However, I noted that the plaintiff had provided insufficient details for the Court to assess whether all costs were reasonably incurred and reasonable in amount. I encouraged the plaintiff and the defendants, being the de facto partner’s sons, to reach agreement on this point.

[2] Regrettably, agreement has not been reached. I have now received memoranda from the plaintiff dated 31 January 2019 and 14 February 2019, and from the defendants dated 12 February 2019.

[3] The plaintiff seeks an order that her reasonable costs and disbursements be fixed at $49,132.40, being solicitors costs and disbursements of $16,057.40 and counsel’s fee and disbursements of $33,075. The solicitors have charged just over 43 hours at $300 per hour, while counsel has charged 60 hours at $475 per hour. He says he has in fact expended more time – just on 65 hours. The plaintiff annexes invoices to her memorandum dated 31 January 2019. The invoices cover a three year period. In addition, counsel has provided a copy of nine job cards which were transferred from his time sheets. They reveal attendance on 171 separate days, commencing with a review of the papers on 22 February 2016. Proceedings were initially drafted in October and November 2017 and filed in March 2018. Proceedings included a separate application that the plaintiff’s solicitor be appointed a litigation guardian for her.

[4] In response, the defendants say that the plaintiff’s claim is an extraordinary amount of time for such routine attendances. Counsel for the defendant submits that he has made such applications including writing and requesting medical reports, getting reports, drafting the papers, including a memorandum for the presiding Judge in less than four hours.

[5] The defendants say that the sum of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Emery v Thorn

Details

AGLC: Emery v Thorn [2019] NZHC 278
Case: [2019] NZHC 278
Decision Date: 27 February 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Elizabeth Emery, represented by her litigation guardian David Dominic Rice, pursued a claim against Leo Harold Thorn and Tony John Thorn for the reimbursement of costs from the estate of her deceased de facto partner. The dispute centred on the reasonable costs and disbursements incurred by Emery in connection with an application for letters of administration filed in the High Court. The court was tasked with determining the reasonableness of the costs claimed by Emery, as well as the appropriate amount to be reimbursed from the estate.

The central legal issue before the court was whether the costs claimed by Emery, amounting to $49,132.40, were reasonable and necessary. Emery's legal team argued that the extensive time spent on the case, over a period of three years, justified the costs. Conversely, the defendants contended that the costs were excessive, given the routine nature of the proceedings, and proposed that a more modest sum of $35,000 be awarded. The defendants also sought to refer the matter to the Law Society for a costs revision, but the court was hesitant to delay the proceedings further.

The court, in its judgment, acknowledged that while Emery was entitled to a substantial award of costs, the amount claimed was exorbitant. The judge noted that the extensive period over which the litigation spanned, along with the complexities and interruptions in the process, warranted an adjustment to the claimed costs. After careful consideration, the court determined that a 20% reduction was appropriate, leading to an order for the estate to pay Emery $40,000, inclusive of GST and disbursements, as her reasonable costs in the litigation. This decision balanced the necessity of the costs incurred against the defendants' concerns about their excessiveness.

Orders