Estate of Toner

[2023] NZHC 3159

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-609494

[2023] NZHC 3159

UNDER	the Administration Act 1969
IN THE MATTER	of the Estate of Patrick James Toner

Hearing:

On the papers

Counsel:

B R D Burke for Applicant D P MacKenzie for Caveator

P W Michalik for Carol Toner

Judgment:

9 November 2023

JUDGMENT OF RADICH J (COSTS)

[1]    In my judgment of 29 June 2023, I ordered that administration of the estate of Patrick James Toner be granted to John Langford.1 In doing so, I did not, in addition, make a grant of administration to Mr Toner’s daughter, Mrs Stacey, as Mrs Stacey had sought. Accordingly, it was not necessary to go on to consider whether a further grant should have been made in favour of Mr Toner’s daughter, Mrs Threadwell.2

[2]    I ordered that Mrs Stacey is to pay costs on a 2B basis to Mrs Threadwell and Mrs Toner for steps taken in the proceeding since 27 January 2023.3 I said that, in the

1      Re Estate of Toner [2023] NZHC 1646.

2      At [58], [59] and [71].

3      At [71(d)]. 27 January 2023 was the point in time at which the parties had agreed that an independent administrator should be appointed, following which Mrs Stacey adjusted her position and sought to be appointed as a co-administrator.

RE ESTATE OF TONER [2023] NZHC 3159 [9 November 2023]

event that the level of the 2B costs could not be agreed between the parties, then memoranda could be exchanged in accordance with the timetable set out.4

[3]    The parties were unable to agree upon the level of 2B costs. Mrs Toner filed a memorandum on 12 July 2023, Mrs Threadwell filed a memorandum on 10 July 2023 and Mrs Stacey filed a memorandum on 28 July 2023. However, regrettably as a result of an administrative oversight, the memoranda were referred to me for consideration only last week.

[4]    Two points remain in contention between Mrs Threadwell and Mrs Toner, on the one hand, and Mrs Stacey on the other. The first of them is this. Mrs Threadwell and Mrs Toner both claim, under item 11 of schedule 3 to the High Court Rules 2016 (the Rules), for two separate memoranda for case management conferences. Joint memoranda for the case  management  conferences  were  filed  by  the  parties  on 23 February and 17 March 2023.

[5]    It is said for Mrs Stacey that each memorandum was a one-page document that Mrs Stacey prepared, at her cost. It is said that the only step taken by Mrs Threadwell and Mrs Toner, in each case, was to review and sign the documents. It is said that, in those circumstances, the $956 claim under item 11 in Schedule 3 for each memorandum is a cost that Mrs Stacey should not be required to meet.

[6]    That is a position that cannot be accepted. Scale costs were ordered for the steps that were taken in the proceeding since 27 January 2023. Each memorandum represents a step. Because costs have been fixed in relation to the time allocations in schedule 3, the successful party is entitled to the time allocation for each step taken, irrespective of whether or not they prepared document to which the step relates. A joint memorandum is a document in relation to which input is required from each of the parties who sign it. Quite apart from that, as Hinton J said when considering a similar issue in Claims Resolution Services Ltd v Pfisterer, where scale costs are awarded, they apply to all steps in the proceeding as the fixing of costs should be

4      At [71(e)].

predictable and expeditious.5 Accordingly, costs for two case management conference memoranda under item 11 in schedule 3 are allowed.

[7]    The second matter relates to the items in schedule 3 that should be used when calculating costs in relation to preparation for  and  appearances  at  the  hearing.  Mrs Threadwell and Mrs Toner have calculated costs under the schedule using items that relate to preparing for and appearances at affidavit hearings. They have used items 30 (which relates to the preparation of affidavits, a list of authorities and agreeing to a common bundle), 31 (in Mrs Threadwell’s case as the party who prepared the common bundle), 32 (which relates to preparation for hearing) and 34 (which relates to appearances at the hearing).

[8]    Mrs Stacey says that these items, which fall within sections in the schedule headed, respectively, “Preparing for affidavit hearing” and “Appearances at affidavit hearing or witness hearing and other steps” should not be applied here. It is said that, instead, two items in the schedule relating to originating applications should be used: item 37 (which relates to filing the application and supporting affidavits) and item 40 (which relates to the preparation of written submissions) should be applied. Moreover, it is said that a 50 per cent reduction should be applied to the two-day time allocation given under item 37 for filing the application and supporting affidavits.

[9]    It is not accepted that items 37 and 40 should be applied here. On the same basis as that mentioned above, a standard costs award was made on a 2B basis for the steps taken in this proceeding. It was not an originating application proceeding. The items that relate to affidavit hearings apply.

[10]   The case was no more nor less complex than, for example, a judicial review proceeding or an application in equity. In any event, it is not a matter of considering whether or not a proceeding has similarities with the other types of proceedings for which provision is made in the schedule. It proceeded under the Court’s probate jurisdiction. Part 27 of the Rules applied. It was an affidavit hearing of the type that

5      Claims Resolution Services v Pfisterer [2021] NZHC 1943 at [51].

is provided for within the items for which claims, by Mrs Threadwell and Mrs Toner, had been made.

[11]   Accordingly, the claims  under items 30, 32 and 34  – and, in the case of   Mrs Threadwell, item 31 – in schedule 3 are approved.

[12]   However, this is not a case in which Mrs Threadwell and Mrs Toner should both be entitled to separate awards of costs. In cases in which parties have common or overlapping interests and in which, essentially, a common position is run, a single award is the most reasonable outcome. This issue arises most commonly in relation to defendants who are successful. The Court will often need to consider whether, in terms of r 14.15, they defend the proceedings separately – in an arm’s length manner

– and whether they needed to do so. The Court will consider whether they cooperated to some extent and relied upon the evidence or submissions of the other.

[13]   As Wylie J said in Independent Māori Statutory Board v Auckland Council, the focus is on whether parties have common or overlapping interests and, if so, to what extent.6

[14]   Here, Mrs Stacey became the proponent in the proceeding. Although the case began with the order nisi obtained by Mrs Threadwell, the only remaining point of contention for the purposes of the hearing was Mrs Stacey’s wish to be an administrator  alongside  the  independent  administrator.   Mrs  Threadwell   and Mrs Toner both appeared in defence of Mrs Stacey’s position. Mrs Threadwell and Mrs Toner had a considerable community of interest. Their cases were aligned. The outcomes they sought were the same. They cooperated and relied upon each other’s evidence and submissions.

[15]   Accordingly, I  make  a  single  costs  award  in  the  amount  claimed  by Mrs Threadwell of $15,415.50 to be shared equally between Mrs Threadwell and Mrs Toner.

6      Independent Māori Statutory Board v Auckland Council [2017] NZHC 678 at [9] and [10].

[16]   Mrs Threadwell and Mrs Toner are, in addition, each entitled to the disbursements they have claimed. Accordingly, $1,272.16 in disbursements is payable to Mrs Threadwell and $110 in disbursements is payable to Mrs Toner.

Radich J

Solicitors:

Harmans, Christchurch for Applicant Gibson Sheat, Wellington for Caveator

Grieg Gallagher & Co, Wellington for Mrs Carol Toner