Legal Research
Cases
Gorringe v Pointon

Gorringe v Pointon

Case [2023] NZCA 426 6 September 2023

Costs in Probate Proceedings

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA151/2022
[2023] NZCA 426

BETWEEN	ROMILEY CHANTAL GORRINGE AND ASHLEY SHAYLIN GORRINGE Appellants
AND	JUDITH ANNE POINTON AND SUSAN RUTH HENDERSON AS EXECUTORS OF THE ESTATE OF JOAN BLAIR GORRINGE Respondents

Court:	Brown, Mallon and Downs JJ
Counsel:	J R Hosking and C J Drought for Appellants K J Catran for J A Pointon as beneficiary S T Scott for S R Henderson
Judgment: (On the papers)	6 September 2023 at 3.00 pm

JUDGMENT OF THE COURT

AThe High Court costs orders with respect to the appellants and the first‑named respondent are set aside. The High Court costs orders with respect to the second-named respondent are undisturbed.
BThe first-named respondent must pay the appellants costs in the High Court of $73,093.75 and reasonable disbursements as fixed by the Registrar of this Court.
CThe first-named respondent must pay the appellants costs in this Court of $16,730 and reasonable disbursements as fixed by the Registrar of this Court.

___________________________________________________________________

Table of Contents

Para No
Introduction  [1]
Overview  [4]
     Costs in the High Court  [4]
     Costs on appeal  [7]
Relevant principles  [9]
Preliminary observations  [13]
High Court costs: the claim against Judith  [20]
     Computation of scale costs in accordance with rr 14.3 to 14.5            [20]
     A reduction under r 14.7(d) and (f)  [23]
     Increased costs  [27]
          Settlement proposals[29]
          Alleged impropriety  [39]
     Conclusion  [41]
High Court costs: Ms Henderson  [42]
     Costs claimed below  [44]
     The recovery now sought from the executors  [50]
     Conclusion  [57]
Costs in this Court[63]
Should Judith recover costs from the estate?  [68]
Conclusion  [74]
Result  [79]

REASONS OF THE COURT

(Given by Brown J)

Introduction

The appellants challenged the testamentary capacity of Joan Gorringe, alleged undue influence by Judith Pointon concerning Joan’s wills made in 2015 and 2016, and asserted a breach of fiduciary obligations by Joan’s executors. All three claims were dismissed in a judgment delivered on 3 March 2022.[1] In a separate costs judgment the appellants were directed to pay costs to both the respondents, with some of the appellants’ costs and all of Judith’s reasonable costs being met from Joan’s estate.[2]
[1]Gorringe v Pointon [2022] NZHC 342 [High Court substantive judgment].
[2]Gorringe v Pointon [2022] NZHC 1621 [High Court costs judgment].
The appellants’ appeal, which was confined to the undue influence cause of action, was successful and both the 2015 and 2016 wills were declared invalid.[3] The issue of costs, both in this Court and in the High Court, was reserved.[4] This judgment addresses costs in both Courts consequent upon the reversal of the High Court’s finding on the undue influence cause of action.
[3]Gorringe v Pointon [2023] NZCA 42.
[4]At [114].
While the computation of costs in this Court is reasonably straightforward, the analysis is more complex for the High Court proceeding given the multiple causes of action, separate representation of the respondents, allegations of impropriety and the service of Calderbank letters.[5] The complexity has been compounded…

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 Gorringe v Pointon

Details

AGLC: Gorringe v Pointon [2023] NZCA 426
Case: [2023] NZCA 426
Decision Date: 6 September 2023 at 3.00 pm

CaseChat Overview and Summary

Gorringe v Pointon is a case in which the Court of Appeal of New Zealand addressed the issue of costs in the context of a successful appeal against the invalidation of two wills. The appellants, Romiley Chantal Gorringe and Ashley Shaylin Gorringe, had challenged the testamentary capacity of Joan Gorringe, alleged undue influence by Judith Pointon concerning Joan’s wills made in 2015 and 2016, and asserted a breach of fiduciary obligations by Joan’s executors. All three claims were dismissed in the High Court, but the Court of Appeal found in favour of the appellants on the undue influence cause of action. The Court of Appeal set aside the High Court costs orders with respect to Judith Pointon and the appellants, and ordered that Judith Pointon must pay the appellants costs in the High Court of $73,093.75 and reasonable disbursements as fixed by the Registrar of this Court. The Court of Appeal also ordered that Judith Pointon must pay the appellants costs in this Court of $16,730 and reasonable disbursements as fixed by the Registrar of this Court. The Court of Appeal left undisturbed the High Court costs orders with respect to Ms. Susan Ruth Henderson, who was one of the executors of Joan Gorringe's estate. The Court of Appeal held that, in the absence of any exceptional reasons for a departure from the ordinary course, costs in this case should follow the result, meaning that the losing party, Judith Pointon, must pay the costs of the winning party, the appellants.

Orders