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…

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.

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Details

Case: [2019] NZHC 1836
Decision Date: 31 July 2019

CaseChat Overview and Summary

The case of Estate of Miah involved an application to reseal a grant of probate in the estate of Afrouza Akter Miah. The dispute was between Mr Miah, who sought to be appointed as the executor of his late wife's estate, and AMP Life Limited, which had lodged a caveat to challenge the validity of a Bangladesh grant of probate. The matter came before Cooke J in the High Court of New Zealand. The central legal issue in this case was the determination of costs incurred by AMP Life Limited in their challenge to the grant of probate. The court needed to decide whether certain disbursements, such as fees for Bangladesh law experts and legal preparation, were reasonably necessary and appropriate for the conduct of the proceedings.

The court considered various aspects of the costs claimed by AMP, including disbursements for expert fees prior to the commencement of the proceedings in New Zealand, and fees associated with the preparation of affidavits. Cooke J ruled that certain disbursements incurred before the proceedings were officially commenced could not be recovered, as they were not directly related to the New Zealand court proceedings. However, fees incurred after the commencement of the proceedings, such as those for the Bangladesh experts in July and September 2018, were deemed recoverable. Regarding the affidavits, the court determined that while the affidavits contained hearsay, they were legitimately incurred and material to the proceedings. Additionally, the court found that claiming costs for the preparation of affidavits under a specific schedule step was inappropriate given the nature of the application. Cooke J also acknowledged the complexity of the case and deemed the use of second counsel to be justified.

The court approved most of the costs claimed by AMP, with some objections noted and disallowed, such as the duplication in claims for expert fees and affidavit preparation. Ultimately, Cooke J ruled in favor of AMP on the majority of the cost claims, while disallowing certain duplications and inappropriate claims under specific schedule steps.

Orders