Garriock v Marshall

[2023] NZHC 2614

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-618602

[2023] NZHC 2614

IN THE MATTER OF

administration of the Estate of Donald Edward Garriock

BETWEEN

BRETT DANIEL GARRIOCK

Applicant

AND

DEBBIE VERONICA MARSHALL

Respondent

Hearing:	On the papers
Counsel	C R D Williams and R J Williams for Applicant/Executor M Kirkland and C Smith for Respondent
Judgment:	21 September 2023

JUDGMENT OF CHURCHMAN J (COSTS)

[1]    Both parties to these proceedings seek costs. Counsel for the Estate asks the Court to order Ms Marshall to pay costs on a 2B basis totalling $7,170. Counsel submits Ms Marshall’s claim was unsuccessful because she withdrew a caveat against probate.

[2]    Counsel for Ms Marshall asks the Court to order the Estate to pay costs totalling $5,497. Counsel submits Ms Marshall’s claim was successful because she obtained disclosure of medical information.

Introduction

[3]There are three people involved in this matter.

GARRIOCK v MARSHALL [2023] NZHC 2614 [21 September 2023]

(a)Donald Edward Garriock (the deceased) was a storeman from Prebbleton, Canterbury. He died on 10 November 2022. His final will, dated 9 September 2022, appointed his son as the executor and leaves the residue of his estate to his son.1

(b)Brett Daniel Garriock (Mr Garriock) is the deceased’s son.

(c)Debbie Veronica Marshall (Ms Marshall) is  the  deceased’s  former de facto partner.

[4]    On 2 December 2022, Ms Marshall lodged a caveat against the administration of the estate of the deceased (the Estate). On 15 August 2023, counsel for the respondent advised the caveat would be withdrawn following consideration of the medical records. In my minute dated 15 August 2023, I made the consent order and directed that I would deal with costs on the papers.2

Submissions

For Mr Garriock

[5]    Mr Williams, for Mr Garriock, submits Ms Marshall should be ordered to pay costs to the Estate on a 2B scale basis.

[6]    Counsel submits Ms Marshall had no valid grounds to support the lodging of her caveat. A Judge of the Family Court explained to her that her relationship with the deceased was over, and she needed to accept that, on 26 July 2022.3 The deceased preparing a new will and enduring powers of attorney after this relationship separation was not unusual. In her affidavit  filed  in  this  proceeding  dated  10  May  2023, Ms Marshall continued denying the relationship separation and misrepresented the situation between the parties as involving a continuing relationship. Following their separation, Ms Marshall was not entitled to the deceased’s medical notes and details

1      Garriock v Marshall HC Wellington CIV-2022-485-618602, 15 May 2023 (Minute of Eaton J).

2      Garriock v Marshall HC Wellington CIV-2022-485-618602, 15 August 2023 (Minute of Churchman J) at [5] and [9].

3      Marshall v Garriock FC Christchurch FAM-2022-009-000612, 26  July  2022  (Minute  of  Judge Shearer) at [12].

of the Estate position, except as relevant to a relationship property claim, which were provided informally.

[7]    The Estate has incurred the actual legal costs of $3,845 plus GST as set out in the invoice dated 13 June 2023 and an additional $2,600 plus GST in respect the invoice dated 21 August 2023, both from Patient & Williams, in respect of estate administration and legal services. The total costs are $7,411.75.

[8]    The Estate has a balance of –$1,503.61. The Estate would have a credit balance but for the legal costs it incurred in respect of Ms Marshall’s caveat. Counsel accepts that an order for Ms Marshall to pay 2B costs is appropriate, although actual costs exceed 2B costs. The 2B costs order sought comprises $7,170.

[9]    Counsel submits there are funds available for the payment of costs. A former joint account held $129,659 on 29 December 2022. Relationship property issues are unresolved, and counsel has sought further information from Ms Marshall in respect of those.

[10]   In counsel’s submissions in reply to Ms Marshall’s submissions, counsel notes Ms Marshall lodged a caveat against probate on 2 December 2022 and did not seek medical records until 13 February 2023.

[11]   Counsel submits Ms Marshall’s claim for medical records was prefaced on her misleading affidavit that she was in an ongoing relationship with the deceased at the time of his death. Judge Shearer had recorded the deceased’s wish for Ms Marshall to stop contacting him in a minute dated 26 July 2022, but Ms Marshall did not disclose this minute to the Court before the teleconference with Eaton J, who therefore gave his indication about the evidential foundation she had established without the full context.

[12]   Counsel notes Ms Marshall did not make a formal discovery application for the medical notes because they were provided by consent after the first case management conference. Ms Marshall did not withdraw the caveat against probate until after the third teleconference.

[13]   Counsel submits Ms Marshall sought the medical information as a fishing expedition. She had been advised by Patient & Williams that there were no issues regarding testamentary capacity. Further, the caveat caused the Estate to deplete funds which will reduce the beneficiary’s inheritance. Counsel says it is in the interests of justice to order Ms Marshall to pay costs to the Estate.

For Ms Marshall

[14]   Mr Kirkland, for Ms Marshall, submits Ms Marshall should be awarded costs from the Estate on a 2B basis.

[15]   Counsel submits Ms  Marshall’s  claim  succeeded  because  she  obtained  Mr Garriock’s medical records, which allowed her to make an informed decision about whether  Mr  Garriock  had  testamentary  capacity  when  he  left  his  final  will.  Ms Marshall requested information including medical records on 13 February 2023. After a teleconference with Eaton J, where  his  Honour  expressed  the  view  that Ms Marshall had established an adequate evidential foundation to justify disclosure, the lawyer for the  Estate  consented  to  the  disclosure  of  the  medical  records.  Ms Marshall received the medical records on 14 June 2023.

[16]   Counsel submits that even if the Estate provided the medical records earlier, the proceeding would have been unnecessary.

[17]The total costs sought by Ms Marshall are $5,497.

Relevant law

[18]   Costs are at the discretion of the Court.4 The Court must exercise its discretion in a manner that is consistent with the rules  and  principles  found  in  both  the  High Court Rules 2016 (Rules) and case law.5

4      High Court Rules 2016, r 14.1.

5      Elishua v Freeland [2022] NZHC 895 at [24].

[19]   The general principle for the determination of costs in this matter is r 14.2(1)(a) of the Rules, which provides “the party who fails with respect to a proceeding or an interlocutory application should pay costs to the successful party”.

Analysis

[20]   I accept the argument of counsel for Mr Garriock that Ms Marshall should pay costs. Ms Marshall lodged a caveat against probate without a sound basis. She had been advised there were no issues regarding testamentary capacity from early on. Once she received confirmation of this advice by way of the medical records, she took over two months to acknowledge there was no basis for her caveat and withdraw the caveat.

[21]   I am not satisfied that Ms Marshall’s claim could feasibly be considered “successful”, as the respondent contends. The medical evidence disclosed to her was provided by consent. In my view, the correct categorisation of the proceeding is that Ms Marshall failed to challenge probate because she withdrew her caveat. Under a standard application of r 14.2(1)(a) of the Rules, Ms Marshall should be responsible for paying costs.

[22]   Similar case law supports such a conclusion. Notably,  in  Lewis v Vincent,  Ms Vincent lodged a caveat against probate of Mrs Allen’s will and withdrew the caveat some eight months later.6 The Court ordered Ms Vincent to pay costs together with disbursements. In my view, Ms Marshall is in a similar position in this case. Like Ms Vincent, she lodged a caveat against probate and withdrew that caveat some months later. She should be responsible for paying costs in respect of the proceeding.

[23]   I am satisfied the costs listed in the Appendix were actually incurred by the Estate and the quantum is reasonable.

Outcome

[24]I therefore accept the applicant’s claim for costs.

6      See Lewis v Vincent [2008] 1 NZLR 121 (HC) at [11].

[25]   The respondent is to pay the applicant costs calculated on a 2B basis, of $7,170 as set out in the appendix hereto. The respondent’s application for costs against the applicant is dismissed.

Churchman J

Appendix

Time allocation	Cost (2B)
22	Filing interlocutory application (for order nisi)	0.6	$1,434
10	Preparation     for     first     case management conference	0.4	$956
11	Filing memorandum for first case management conference	0.4	$956
13	Appearance     at     first     case management conference (on 15 May 2023)	0.3	$717
11	Filing memorandum for second case management conference	0.4	$956
13	Appearance    at    second    case management conference (on 3 August 2023)	0.3	$717
11	Filing       memorandum       for mentions hearing	0.4	$956
12	Appearance at mentions hearing (15 August 2023)	0.2	$478
Total			$7,170