Flooks v Flooks

[2025] NZHC 2299

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000268 [2025] NZHC 2299

BETWEEN

TRACEY MAY FLOOKS

Plaintiff

AND

KATHRYN LYNETTE FLOOKS, MANDY LEE ROHRLACH,

TREVOR EDGAR FLOOKS and

BARRIE WAYNE PRICE as four of the five former executors of the estate of

KEVIN STANLEY FLOOKS
First Defendants

HENRY JOHN BRANDTS-GIESEN as

independent executor of the estate of KEVIN STANLEY FLOOKS

Second Defendant

Hearing:

On the papers

Judgment:

15 August 2025

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Friday, 15 August 2025 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

K3 Legal Ltd, Auckland.

Patterson Hopkins Lawyers, Auckland. AAH Low, Auckland.

FLOOKS v FLOOKS [2025] NZHC 2299 [15 August 2025]

[1]This judgment determines costs in relation to an abandoned claim.

Background

[2]        On 10 August 2020, Kevin Flooks died. Ms Flooks, his daughter, was named as an executor. So too the first defendants.1 Disagreements arose between Ms Flooks and the first defendants, which became the subject of other litigation.2

[3]        On 16 October 2023, Ms Flooks commenced this claim in her capacity as both beneficiary and executor.

[4]        The first defendants responded 6 November 2023, making an offer for full and final settlement of all litigation. Ms Flooks did not respond until after that offer had lapsed. On 22 November 2023, the first defendants filed an interlocutory application seeking appointment of an interim administrator, a proper statement of claim by    Ms Flooks, and security for costs. At first call, now 28 February 2024, Cooke J adjourned the claim for three weeks and suggested the executors be replaced by an independent administrator. On 10 April 2024, Henry Brandts-Giesen was appointed as that by consent.3

[5]        On 9 July 2024, Muir J directed Mr Brandts-Giesen to identify what, if any, claims should be pursued by  the estate against any  of the former executors;  and  Ms Flooks  to   file   an   amended   statement   of   claim   by   21   August   2024. On 6 August 2024, Mr Brandts-Giesen confirmed the estate did not intend to pursue any of Ms Flooks’ claims against the first defendants and recommended Ms Flooks “repositions her claims where appropriate”.

[6]        On 11 September 2024, Ms Flooks filed her amended statement of claim (hence approximately three weeks late). The first defendants applied to strike the amended claim, or for summary judgment.

1      Kathryn Flooks was Kevin’s wife; Mandy Rohrlach and Trevor Flooks  his  children;  and  Barrie Price a former family accountant. A fourth child, Debra Moodie, has taken no step in this proceeding.

2      See Nash v Brandts-Giesen [2024] NZFC 7308; Moodie  v  Flooks  [2024]  NZFC  570;  Oaklane Dairy Ltd v Flooks [2023] NZHC 1852; and Oaklane Dairy Ltd v Flooks [2023] NZHC 3223.

3      Mr Brandts-Giesen was later joined as second defendant.

[7]        On 10 February 2025, Ms Flooks sought confirmation from all defendants that costs would not be sought if she abandoned her amended claim. The second defendant agreed to the proposal. The first defendants agreed provided all litigation came to an end, or the amended claim attracted costs of $30,000. Ms Flooks did not agree to either proposal.

[8]        Ms Flooks ultimately abandoned her amended claim on 13 February 2025, one day before the first defendants’ submissions were due in relation to their strike out and summary judgment applications.

Summary of arguments

[9]        The first defendants seek indemnity costs of $163,102.39, or increased costs of $48,398 (an uplift of 50 percent from scale). Disbursements are also sought.

[10]Ms Flooks submits any costs should be confined to $14,818.50 (on a 2B scale).

Analysis

[11]      At least three costs principles are engaged. First, a plaintiff who abandons a claim must pay costs up to, and including, their abandonment.4 Quantification of those costs is, as always, at the discretion of the Court.5 Second, costs reflect how parties have acted during the case, not earlier.6 Third, abandonment is not akin to a judgment in favour of a defendant; hence a defendant must establish the plaintiff’s failure to accept a settlement offer was unreasonable.7

[12]      The first defendants say Ms Flooks acted vexatiously, frivolously, improperly, or unnecessarily in commencing or continuing steps in the claim; that she brought the claim for an ulterior motive; her claims lacked merit and failed to comply with the High Court Rules 2016; and she unreasonably failed to accept the November 2023

4      High Court Rules 2016, r 15.23.

5      High Court Rules, r 14.1

6      Corrick v Silich [2018] NZCA 221, [2018] NZCCLR 21 at [60], citing Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA) at [160].

7      Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [29].

settlement offer or the February 2025 counterproposal. The same grounds are offered in support of each species of costs.

[13]      The first defendants say Ms Flooks must have known her allegations could not be sustained given the information she already had (from the other litigation). The law draws a distinction between  a  “hopeless”8  claim  and  one  that  “lacks  merit”.9  The former may warrant indemnity costs; the latter, increased costs. The first defendants’ November actions — as to which see [4] — imply the claim was not hopeless.

[14]      The first defendants criticise Ms Flooks for not earlier accepting appointment of an independent administrator. Ms Flooks had throughout agreed to an appointment “in principle”, provided she received information which she said the first defendants had withheld. I am not persuaded that position was vexatious on the material available.

[15]      The first defendants also say Ms Flooks brought the claim for an ulterior motive.10 They say that is reflected in letters from Ms Flooks’ solicitors, email sent by Ms Flooks and her partner, and a WhatsApp message(s) sent two years before the claim was filed. Again, I am unpersuaded: the material reveals a seemingly typical acrimonious familial dispute.

[16]      All this said, Ms Flooks’ initial claim was unparticularised, and in need of amendment. That meant the defendants were put to unnecessary time and expense.11 Ms Flooks also persisted with the claim despite Mr Brandts-Giesen’s position and was late in filing her amended claim.

[17]      It is difficult to analyse the settlement offers in relation to the entire litigation for just that reason. In any event, Ms Flooks’ refusal to pay $30,000 costs was unreasonable given her presumptive exposure to costs.

8      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [29].

9      High Court Rules, r 14.6(3)(b)(ii).

10     Naidu v Chandnaani [2020] NZHC 2056 at [19]–[21].

11     Justifying  band  C  for  those steps  as  submitted  by  the first  defendants:  High  Court Rules,  r 14.5(2)(c).

[18]      These conclusions are commensurate with increased costs of 50 percent on scale, not indemnity costs, which require “flagrant” or “exceptionally bad behaviour”.12

Costs recoverable from the estate?

[19]      The first defendants seek confirmation that any shortfall between costs and actual costs be recoverable from the estate under an executor’s indemnity.

[20]      The first defendants were acting, and reasonably so, in their capacity as executors until they were replaced by Mr Brandts-Giesen. The indemnity unquestionably applies up to that point.13 Expenses thereafter flowed directly from the first defendants’ role as former executors. The principle that an executor need not conduct the affairs of the estate at their own cost, therefore, endures.14

Result

[21]      Ms Flooks is liable to the first defendants for costs of $48,398 and $793 in disbursements.

[22]      The first defendants are entitled to be indemnified from the estate to the extent that their costs in connection with the claim are not recoverable from Ms Flooks.

……………………………..

Downs J

12     Bradbury v Westpac Banking Corporation, above n 8, at [28]. See also Prebble v Huata [2005] 2 NZLR 467, (2005) 17 PRNZ 581 (SC) at [6].

13     Trusts Act 2019, s 81, which applies by virtue of Administration Act 1969, s 4B. See also Pratley v Courteney [2018] NZCA 436, [2018] NZAR 1787 at [18].

14     Compare Foote v Foote [2013] NZHC 2590 at [25], citing Bank of New Zealand v Rowley [2012] NZHC 3540, (2012) 25 NZTC 20-157.