Gibson (Costs)

[2022] NZHC 1326

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV 2020-485-547

[2022] NZHC 1326

IN THE MATTER OF

Section 14 of the Wills Act 2007

AND

IN THE MATTER OF

an application by RODERICK DEAN GIBSON for an order that a document be declared a valid will of GOOSSEWINUS JOHANNES HUURDEMAN

On the papers

Counsel:

P Cranney and A J Connor for Applicant

G S McCardle and N J Tutt for Dianne Sullivan

Judgment:

7 June 2022

JUDGMENT OF MALLON J

(Costs)

[1]                  In the substantive judgment in this proceeding I made an order under s 14 of the Wills Act 2007 declaring two documents valid as the last will of Goossewinus Johannes Huurdeman.1 That declaration was unsuccessfully opposed by Melanie Mitchell, the daughter of Mr Huurdeman’s long-term partner (Dianne Sullivan), on the grounds that Mr Huurdeman may have lacked testamentary capacity or been subject to undue influence when creating the documents declared as a will.

[2]                  The applicant, who was the executor and a beneficiary in the documents declared as the will, now seeks an award of costs on a 2B basis (an amount totalling

$25,249.50) against Ms Mitchell. Ms Mitchell submits that there should be no order for costs and costs should lie where they fall or, alternatively, that an order should be

1      Re Gibson [2021] NZHC 3256.

Re Gibson (Costs) [2022] NZHC 1326 [7 June 2022]

made that costs are to be paid from the assets of the estate. Neither party provides any case law in support of their respective positions.

[3]                  I am satisfied that, if I were to make an order for costs against Ms Mitchell, it would be appropriate for those costs to be met from the estate. See, for example, Harris v Taylor.2 Mr Huurdeman had not gotten around to engaging a lawyer to complete the will and, as I found in the substantive judgment, there were grounds for Ms Mitchell to be suspicious about whether Mr Huurdeman had testamentary capacity at the time the two documents were created.3 In the circumstances, it was reasonable for Ms Mitchell to have this issue tested on evidence presented in a court and she did so in an efficient way. The same applies to the issue of undue influence which, in any event, did not add significantly to the costs of the hearing. The estate is of a size that can bear the costs and Ms Mitchell was in part motivated out of her love and affection for Mr Huurdeman.

[4]                  For similar reasons, I consider that both parties should have their own reasonably incurred costs reimbursed from the estate. Neither party proposed this, but it is not clear whether they have considered the case law. See, for example, Wilson v Donnellan, Mumby v Mumby and Squires v Nijisse.4 I will, however, give the parties the opportunity to consider this and make submissions if they wish to oppose this course. However, if the parties accept the approach I have indicated, I consider there would be no need to make any order for costs and each party would be entitled to their reasonably incurred costs as approved by the administrator.

[5]                  The parties have two weeks from the date of this judgment to either make submissions or to file a joint memorandum advising that they accept the indication in this interim judgment.

Mallon J

2      Harris v Taylor [2016] NZHC 483 at [17].

3      Re Gibson, above n 1, at [73].

4      Wilson v Donnellan [2014] NZHC 1609; Mumby v Mumby [2016] NZHC 2836; and Squires v Nijise HC Auckland CIV-2002-404-1618, 6 July 2004.