Estate of Yates - [2025] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-601937

[2025] NZHC 3284

IN THE MATTER OF the Estate of Geraldine Yates

BETWEEN

SHARON MCGANN

Applicant

AND

PETER FRANCIS MCGANN

Respondent

Hearing: On the papers

Counsel:

M T Riordan for Applicant Respondent in person

Judgment:

31 October 2025

JUDGMENT OF WILKINSON-SMITH J

[Costs]

This judgment was delivered by me on 31/10/2025 at Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Quin Law, New Plymouth Copy to Respondent

RE ESTATE OF GERALDINE YATES [2025] NZHC 3284 [31 October 2025]

Introduction

[1] On 20 August 2025 I issued a judgment in favour of the applicant, Sharon McGann, making absolute an order nisi and granting probate of the last will of Geraldine Yates to Sharon McGann as sole executor and trustee. 1

[2] I directed the parties to file memoranda on costs in the event that they were unable to agree costs between themselves.

[3] I have since received a memorandum of counsel for Sharon McGann seeking a costs order against the respondent, Peter McGann. Peter McGann has not filed a memorandum in reply.

[4]Sharon McGann seeks an award of costs on a 2B basis in the amount of

$13,623, together with disbursements of $1,311.10.

[5] Sharon McGann says that Peter McGann’s conduct, including his failures to observe timetable directions issued by the Court, has caused her to incur significant legal costs and disbursements.

Legal principles

[6] Rule 14.1(1) of the High Court Rules 2016 sets out the general principle that all matters relating to costs of or incidental to a proceeding, or of a step in a proceeding, are at the discretion of the Court.

[7] Rule 14.2(1) sets out a number of principles applying to the determination of costs, including that the party who fails with respect to a proceeding should pay costs to the party who succeeds;2 an award of costs ought to reflect the complexity and significance of the proceeding;3 an award of costs should not exceed the actual costs

1      McGann v McGann [2025] NZHC 2358.
2      High Court Rules 2016, r 14.2(1)(a).
3      Rule 14.2(1)(b).

incurred by the claimant;4 and so far as possible, the determination of costs ought to be predictable and expeditious.5

[8] Rule 14.12(1)(a) defines a “disbursement” as “an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs”. The examples listed under r 14.12(1)(b) include fees of court and expenses of serving documents in the proceeding.6

[9]Rule 14.12(2) provides that:

(2)A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—

(a)of a class that is either—

(i)approved by the court for the purposes of the proceeding; or

(ii)specified in paragraph (b) of subclause (1); and

(b)specific to the conduct of the proceeding; and

(c)reasonably necessary for the conduct of the…

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.

Keep reading for free

Create a free CaseChat account to read Estate of Yates and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NZHC 3284
Decision Date: 31 October 2025

CaseChat Overview and Summary

In this case, the High Court of New Zealand was asked to determine the costs incurred in the estate of Geraldine Yates, a deceased individual. Sharon McGann, the applicant and sole executor and trustee of Yates' will, sought a costs order against Peter McGann, the respondent and another beneficiary under the will. Sharon McGann sought an award of costs on a 2B basis in the amount of $13,623, along with disbursements of $1,311.10. She claimed that Peter McGann's conduct, including his failure to observe court-issued timetable directions, had caused her to incur significant legal costs and disbursements.

The court was required to decide on the appropriate award of costs based on the legal principles and rules governing costs in the High Court. The court considered the relevant rules and principles, including Rule 14.1(1) which states that all matters relating to costs of or incidental to a proceeding are at the discretion of the Court. The court also considered Rule 14.2(1) which sets out various principles for determining costs, such as the principle that the party who fails with respect to a proceeding should pay costs to the party who succeeds. Additionally, the court considered the principles applicable to probate proceedings as articulated in the case of Re Paterson (deceased).

The court reasoned that Sharon McGann was the successful party in this case, and Peter McGann's approach to the litigation significantly increased the costs incurred. Peter McGann did not comply with court orders, filed documents out of time, failed to file submissions as directed, and attempted to file an affidavit on the morning of the hearing. Although Peter McGann was self-represented, the court found that his approach increased the cost to Sharon McGann, who did instruct counsel. The court determined that the usual rule that costs follow the event should apply in this case, and that it would be fair and appropriate for costs to be awarded against Peter McGann personally, so that they are paid from his share of the estate rather than the estate as a whole.

The court made the following directions: (a) the matter is categorised as category 2B; (b) Peter McGann is to pay costs to Sharon McGann in the amount of $13,025.50, together with disbursements of $154.10; and (c) Peter McGann is to pay the following additional disbursements included in Sharon McGann’s costs memorandum, subject to verification by the Registrar: (i) “Filing fee — originating application”: $260; (ii) “Filing fee — sealing orders”: $65; and (iii) “Hearing fee”: $832.

Orders