Estate of Miah

[2019] NZHC 1836

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-611762

[2019] NZHC 1836

IN THE MATTER OF	the Administration Act 1969
AND
IN THE MATTER OF	An application to reseal a grant of probate in the Estate of AFROUZA AKTER MIAH

Hearing:

On the papers

Counsel:

R J Hooker for Applicant

B A Scott and S Kettani for AMP Life Limited

Judgment:

31 July 2019

JUDGMENT OF COOKE J

(Costs)

[1]    By judgment dated 7 June 2019 I dismissed Mr Miah’s application that a caveat lodged by AMP should be discharged, and that an order nisi appointing him executor off his wife’s estate be made absolute, and I granted AMP’s application that the order nisi be discharged.1 I outlined my preliminary view that AMP was entitled to costs which should be awarded on a 2B basis.2 Mr Miah accepts that AMP is entitled to costs, but there is a dispute as to some of the matters claimed. AMP has set out its claims by memorandum dated 21 June 2019, supplemented by a further memorandum dated 4 July 2019. Counsel for Mr Miah outlined the areas of disagreement by memorandum dated 9 July 2019, which was responded to by counsel for AMP by further memorandum of the same date.

1      Re Estate of Miah [2019] NZHC 1278.

2 At [64].

ESTATE OF MIAH [2018] NZHC 1836 [31 July 2019]

Disbursements prior to proceedings being filed

[2]    Under r 14.12(2) the Court must approve a disbursement other than those expressly allowed if it is reasonably necessary for the conduct of the proceedings and reasonable in amount. A dispute arises in relation to certain fees for Bangladesh law experts.

[3]    First Mr Miah objects to such disbursements incurred by AMP prior to the order nisi being made on 2 October 2018, namely the costs of the fees of Dr Karmel Hussain and Associates in April and May 2018, and then in July and September 2018 totalling US$5,700. Counsel for Mr Miah points out the order nisi was made on 2 October 2018, and that any bill of costs from the agent in Bangladesh prior to that time cannot be regarded as being a cost of the proceeding. Counsel for AMP argue in response that the costs were related to the investigations into the validity of the alleged Bangladesh grant of probate.

[4]    This issue seems to me to turn on when the proceeding was commenced in New Zealand. Whilst AMP had earlier lodged a caveat, the application to reseal the order of the Bangladesh Court was not made until 25 June 2018. For that reason I do not accept that the invoice of 6 May 2018 for US$4,500, for steps taken in April and May 2018 can be recovered. They cannot be regarded as disbursements incurred in the conduct of the proceedings as they had not yet been commenced. But I accept that the invoice dated 30 September 2018 for attendance in July and September in the amount of US$1,200 is recoverable as a disbursement incurred in respect of the proceedings which had then been commenced in New Zealand.

Alliance Laws

[5]    Counsel for Mr Miah disputes the claim for the disbursements by Alliance Laws in the amount of US$3,000. This was in connection with a further affidavit dated 9 May 2019 that was passed up to the Court at the hearing. Counsel for Mr Miah contends that the affidavit was inadmissible as hearsay and the Court declined to consider it. Counsel for AMP argues in response that their recollection was that the Court did not make any adverse determination on the consideration of the contents of the affidavit to which the fee relates.

[6]    At the hearing I decided to receive the affidavit notwithstanding that it contained hearsay material. I made reference to it in paragraph [19] of the judgment. It seems to me that it was a disbursement legitimately incurred, and it was material that was legitimately provided to the Court. It was only hearsay material because of late provision of the affidavit it was responding to. For those reasons this disbursement is allowed.

Preparation of affidavits

[7]    AMP have claimed two and a half hours for the preparation of affidavits under step 30 of the Schedule. Mr Miah objects on the basis that the affidavits were substantively from the various agents in Bangladesh, and that this claim involves duplication given the claim for their costs as disbursements. Counsel for AMP say the costs of preparing the affidavits is separate from the expert fees from the Bangladesh lawyers.

[8]    Step 30 in the Schedule is the step applicable to trial preparation. It does not apply to interlocutory applications. Step 30 might be considered by way of analogy in circumstances where affidavits were required for an interlocutory application, although the more natural step might be to allow the party to make a claim under time band C rather than B under steps 22, 23 or 24 to take into account the preparation of affidavits. Here, however, I accept that much of the affidavit preparation is covered by the disbursement and the allowance provided for the other steps. Accordingly I accept Mr Miah’s point that to claim separately under step 30 is double counting, and I do not allow it.

Second counsel

[9]    Mr Miah also objects to an allowance for second counsel. I accept that second counsel was appropriate in the present case given the extent and complexity of the issues involved.

[10]Otherwise the costs claimed by AMP are approved.

Cooke J