Legal Research
Cases
Farquharson v Farquharson

Farquharson v Farquharson

Case [2021] NZHC 1241 31 May 2021

Family Protection Act 1955

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-000035

[2021] NZHC 1241

IN THE MATTER Of The Family Protection Act 1955

BETWEEN

DAVID KAHAWAI FARQUHARSON

Appellant

AND

OPAL ADA MARIE FARQUHARSON AS ADMINISTRATOR IN THE ESTATE OF IAN CHARLES FARQUHARSON

Respondent

Hearing: On the papers

Appearances:

J R Hosking for Appellant R D Clark for Respondent

Judgment:

31 May 2021

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 31 May 2021 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Anderson Creagh Lai, Auckland Lewis Lawyers, Cambridge

FARQUHARSON v FARQUHARSON COSTS JUDGMENT [2021] NZHC 1241 [31 May 2021]

Background

[1] By my judgment delivered on 19 February 2021 I reversed a decision of the Family Court and awarded Mr David Farquharson (the appellant) 46 per cent of his father’s estate under the Family Protection Act 1955 (the “FPA”).1 The appellant now applies for an award of costs against the respondent, Ms Opal Farqharson who is his mother.

[2] The appellant seeks a 50 per cent uplift on 2B scale costs in recognition of the respondent having rejected several Calderbank offers.2 He also seeks indemnity costs or alternatively, costs on a 3C scale basis, alleging that the respondent’s conduct of the proceedings prolonged and aggravated them.

[3] The respondent accepts that costs may be awarded to the appellant given that his appeal was successful. She does not oppose the proposed 2B costs sought by the appellant. The respondent does however, oppose an award of increased or indemnity costs.

[4] Counsel for the appellant has included the costs relating to the Family Court proceedings in the appellant’s claim for costs in this Court.3 On 18 March 2020, Judge J F Munro declined to make any costs decision prior to the determination of the appeal.4 Mr Farquharson has succeeded on appeal and is entitled to costs in the Family Court.5 However, the measure of costs in the Family Court is a matter appropriately dealt with in that court.

Costs

[5] Counsel for the appellant has summarised the costs sought by Mr Farquharson relating to the High Court appeal in the table below:

1      Farquharson v Farquharson [2021] NZHC 222. At [65]-[66], Mr Farquharson is awarded
$200,000, along with a Great Wall motor vehicle valued at $13,500 and electronic equipment valued at $2,500.
2      See Calderbank v Calderbank [1975] 3 All ER 333 (EWCA).
3      Counsel has also included copying of the bundle for the Family Court as a disbursement.
4      Farquharson v Farquharson [2020] NZFC 1103.
5      See for example Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [13].

Costs in the High Court

Step

Description

Time allocation

(2B)

Costs (2B)

Time allocation

(3C)

Costs (3C)

52

Commencing appeal

1.00

$2,390

3.00

$10,590

54

Case

management

0.80

$1,912

0.80

$2,824

55

Preparation of

Case on Appeal

1.00

$2,390

2.00

$7,060

56

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 Farquharson v Farquharson

Details

AGLC: Farquharson v Farquharson [2021] NZHC 1241
Case: [2021] NZHC 1241
Decision Date: 31 May 2021

CaseChat Overview and Summary

The case of Farquharson v Farquharson involved a dispute over the estate of Ian Charles Farquharson. David Farquharson, the appellant, sought a review of a Family Court decision regarding his entitlement to a portion of his father's estate under the Family Protection Act 1955. The respondent, Opal Ada Marie Farquharson, Ian's widow and the administrator of his estate, opposed the claim. The High Court of New Zealand addressed the issue of costs incurred by David Farquharson during the appeal process.

The central legal issues were whether indemnity costs should be awarded, whether costs should be awarded on a 3C scale basis, and if not, whether an uplift on scale costs should be applied. David Farquharson argued for a 50% uplift on 2B scale costs due to the respondent's rejection of several settlement offers, as well as indemnity costs, alleging that the respondent's conduct prolonged and aggravated the proceedings. The respondent, on the other hand, accepted that costs may be awarded to David but opposed increased or indemnity costs, citing her poor health and limited financial resources.

The court found that while the respondent's conduct warranted increased costs due to the rejection of reasonable settlement offers, an award of indemnity costs would be unduly harsh given the limited remaining funds in the estate. The court also ruled out 3C scale costs, as they would be close to the amount of an indemnity costs award and would cause undue hardship. Instead, the court decided to award a 50% uplift on 2B scale costs, balancing the need to recognise the costs incurred by David and avoiding undue prejudice to the respondent.

The final orders included that the respondent would pay the appellant increased costs on a 2B scale basis uplifted by 50%, together with disbursements, to be met from the assets of the estate.

Orders