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Flooks v Flooks

Flooks v Flooks

Case [2025] NZHC 2299 15 August 2025

Civil Litigation & Procedure

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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…

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 Flooks v Flooks

Details

AGLC: Flooks v Flooks [2025] NZHC 2299
Case: [2025] NZHC 2299
Decision Date: 15 August 2025

CaseChat Overview and Summary

In the case of Flooks v Flooks, the High Court of New Zealand determined costs in relation to an abandoned claim brought by Tracey May Flooks against four former executors of her deceased father's estate and an independent executor, Henry John Brandts-Giesen. The first defendants, Kathryn Lynette Flooks, Mandy Lee Rohrlach, Trevor Edgar Flooks, and Barrie Wayne Price, sought indemnity or increased costs following Ms Flooks' abandonment of her amended claim. Ms Flooks had initially commenced the claim in her capacity as both beneficiary and executor of Kevin Flooks' estate, leading to disagreements with the first defendants that were the subject of other litigation.

The legal issues the court had to decide included whether the plaintiff, who abandoned the claim, was liable for costs up to the point of abandonment and whether the defendants' claims for costs were justified. The court had to consider the principles that costs should reflect how parties have acted during the case, not earlier, and that abandonment is not akin to a judgment in favour of a defendant. The court also had to determine whether the first defendants were entitled to be indemnified from the estate to the extent that their costs were not recoverable from Ms Flooks.

The court found that Ms Flooks' initial claim was unparticularised and in need of amendment, which put the defendants to unnecessary time and expense. The court was also of the view that Ms Flooks unreasonably refused to pay $30,000 costs, given her presumptive exposure to costs. These factors justified increased costs of 50 percent on scale, not indemnity costs, which require "flagrant" or "exceptionally bad behaviour." The court confirmed that the first defendants were entitled to be indemnified from the estate for any shortfall between the costs and the amount recoverable from Ms Flooks, as they were acting reasonably in their capacity as executors until replaced by Mr Brandts-Giesen.

The final orders of the court were that Ms Flooks is liable to the first defendants for costs of $48,398 and $793 in disbursements. The first defendants were entitled to be indemnified from the estate to the extent that their costs in connection with the claim were not recoverable from Ms Flooks.

Orders