Hagaman v Hagaman

[2023] NZHC 1793

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-531

[2023] NZHC 1793

IN THE MATTER

of the Estate of Earl Raymond Hagaman

BETWEEN

DAMON CARLSON HAGAMAN, JENNIFER LYNN HAGAMAN ELDERS, KIMBERLY RAE HAGAMAN AND KEITH ERIC HAGAMAN

Plaintiffs

AND

LIANNA-MERIE HAGAMAN, GIBRALTAR TRUST LIMITED AND FJB

TRUSTEES LIMITED as trustees of the NACIEMENTO TRUST

First Defendants

LIANNA-MERIE HAGAMAN
Second Defendant

LIANNA-MERIE HAGAMAN,
GILBRALTAR TRUST LIMITED AND FJB

TRUSTEES LIMITED as trustees of the SEQUOIA TRUST

Third Defendants

Hearing:

(On the papers)

Counsel:

A R Galbraith KC and G J D Mander for Plaintiffs

M G Colson KC and J L W Wass for First Defendants J B M Smith KC for Second Defendant

V L Heine KC for Third defendants and for non-party Estate E R Hagaman

Judgment:

10 July 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

HAGAMAN v HAGAMAN [2023] NZHC 1793 [10 July 2023]

[1]        This judgment fixes costs in respect of a number of interlocutory applications between the parties. Costs on the first interlocutory judgment, which dates from 15 July 2021, were  deferred  given  that  judgment was  interim  until  a  judgment  on 5 October 2022.

[2]        The parties have filed costs submissions and, while there are some issues for me to resolve, there is a substantial degree of agreement between them.

[3]        The level of agreement means in respect of some costs issues I simply need to resolve whether the steps claimable by the successful party are on a 3B or 3C basis.

Judgment 15 July 2021 — s 66(3) Evidence Act ruling

[4]        Counsel are agreed that Category 3 applies to this hearing. The plaintiffs seek Band C for all steps — the defendant Band B.

[5]        The defendants accept the application involved consideration of novel or complex issues. I agree. The defendants, however, say the material filed in the hearing were within the normal range — to some extent I also agree with that submission.

[6]        The time band allowed under the Rules may differ for each step. In my view the novel/complex nature of the issues involved should be reflected in the time allocated for the preparation of submissions and the hearing, while the allowances for what might be called the mechanics of getting the application to hearing should be on a 3B basis to reflect that those steps were relatively straightforward.

[7]That means the costs claimed by the plaintiffs for this hearing is as follows:

Step number	Description	Relevant documents	Time allocation	Amount (Category 3)
11	Filing memorandum for first or subsequent case management conference or mentions hearing	Memorandum dated 14 May 2021 and memorandum dated 13 August 2021	Band B 0.8	$2,824.00

23	Filing notice of opposition and supporting affidavits	Notice of opposition dated 19 May 2021 Affidavit of Keith Hagaman dated 19 May 2021	Band B 0.6	$2,118.00
24	Preparation of written submissions	Submissions in opposition to s 66 application dated 10 June 2021	Band C 3	$10,590.00
25	Preparation by applicant of bundle for hearing	Plaintiffs’ bundle of authorities and documents for plaintiffs in opposition to application for privilege under s 66 dated 11 June 2021	Band B 0.6	$2,118.00
26	Appearance at hearing of defended application for sole or principal counsel	Hearing 9-11 August 2022 excluding other matters	Band B 1.25	$4,412.50
27	Appearance at hearing for second counsel	Hearing 9-11 August 2022 excluding other matters (and being half of allowance for principal counsel).	Band B 0.625	$2,206.25
Total				$24,268.75

[8]        The plaintiffs’ original schedule claimed item 38 from the scale for the notice of opposition. However, that is the allocation for an originating application rather than an interlocutory application. The correct scale item is item 23. The plaintiffs claimed

1.25 days of hearing time. The defendants’ schedule allowed one day. I note the judgment records the hearing continuing into a second day. Accordingly, I allow the plaintiffs’ claim for 1.25 days. There is an award of costs in favour of the plaintiffs in respect of the 15 July 2021 hearing of $24,268.75.

The 5 October hearing — s 66(4) Evidence Act ruling

[9]        The defendants raised the same arguments in respect of the s 66(4) hearing as they did the earlier s 66(3) hearing. I adopt the same approach.

[10]      There is an issue as to the hearing time involved in the s 66(4) hearing. The issue arises because the s 66(4) hearing was one of a number of applications dealt with over three hearing days (9 – 11 August 2022). One of those applications was a continuation of the s 66(3) argument. The issue in my view seems to have arisen because the plaintiffs in the schedule reproduced above refer to the hearing 9 – 11

August 2022 rather than the two hearing days in June 2021 for the original s 66(3) hearing. While there was a continuation of the s 66(3) issue in the 2022 hearing, the way in which the plaintiffs’ schedule has been prepared suggests its claim is for the hearing time in 2022 and not the earlier hearing. I am treating the plaintiffs’ claim in respect of the July 2021 judgment as being the hearing time in 2021.

[11]      The plaintiffs apparently claiming for the 2022 hearing time led the defendants (understandably) to submit that while the August 2022 hearing lasted three hearing days the total of the plaintiffs’ claims is for four hearing days of time. That is only the case if the s 66(3) time above is included in the claim for the August 2022 hearing. I do not consider that is what the plaintiffs are doing.

[12]      Accordingly, I do not adjust the hearing time claimed for by the plaintiffs in respect of the s 66(4) hearing that took place in August 2022. However, I adjust the other band items, as I have done for the s 66(3) hearing for the same reasons. Accordingly, the costs claim for the s 66(4) hearing is allowed as follows:

Step number	Description	Relevant documents	Time allocation	Amount (Category 3)
23	Notice of opposition to interlocutory application	Notice of opposition dated 2 July 2021 in respect to s 66(4)	Band B 0.6	$2,118.00
11	Filing memorandum for first or subsequent case management conference or mentions hearing	Memorandum dated 16 August 2021 and joint memorandum dated 23 August 2021 Both memoranda were drafted by the plaintiffs but have been accounted for as a single memorandum to reflect that they also addressed other matters	Band B 0.4	$1,412.00
24	Preparation of written submissions	Submissions dated 8 August 2022 in relation to s 66(4)	Band C 3	$10,590.00
26	Appearance at hearing of defenced application for sole or principal counsel	Hearing 9-11 August 2022 excluding other matters	1	$3,530.00

27	Appearance at hearing for second counsel	Hearing 9-11 August 2022 excluding other matters (and being half of allowance for principal counsel).	0.5	$1,765.00
Total				$19,415.00

[13]Accordingly, there is a costs award in favour of the plaintiffs in the sum of

$19,415.00.

Privilege for Trust documents

[14]      The defendants note that in respect of the plaintiffs’ applications heard in August 2022 the plaintiffs filed one application seeking various matters. I do not disallow the plaintiffs’ separate claims for preparation of the application in respect of each head of application simply on the grounds they were incorporated into the one document. Each application had to be dealt with separately in the formal application. Where Category 3 is sought this factor supports treating the application as Band B.

[15]      Accordingly, I adjust the plaintiffs’ claim for costs in respect of the application concerning the privilege of Trust documents as follows:

Step number	Description	Relevant documents	Time allocation	Amount (Category 3)
22	Filing interlocutory application	Application dated 1 July 2022 in respect to discovery The plaintiffs are conscious that this overlaps with matters which will be the subject of a second costs application. This will not be accounted for in that application given that it has been accounted for here. It is included here on the basis that the application and the accompanying submissions (below) focused significantly on the issues of privilege	Band B 0.6	$2,118.00
24	Preparation of written submissions	Plaintiffs’ submissions dated 27 July 2022 Accounted for here on the same basis as the application above	Band C 3	$10,590.00

26	Appearance at hearing of defended application for sole or principal counsel	Hearing 9-11 August 2022 excluding other matters	Band ? 0.75	$2,647.50
27	Appearance at hearing for second counsel	Hearing 9-11 August 2022 excluding other matters (and being half of allowance for principal counsel).	Band ? 0.375	$1,323.75
Total				$16,679.25

[16]The costs judgment in respect of this head is therefore $16,679.25.

Second defendant’s discovery application

[17]      The plaintiffs were successful in respect of the second defendant’s discovery application and seek costs on a 2B basis in the sum of $6,811.50. They also seek disbursements of $110.00.

[18]      The defendants accept those figures are appropriate. Accordingly, there is judgment against the second defendant in those sums.

The plaintiffs’ discovery application

[19]      The plaintiffs’ discovery application was also dealt with in the 18 October 2022 judgment. I accept the plaintiffs’ submission that they were largely successful in respect of this application. They succeeded on the key points in respect of medical records, the Family Court record and documents relating to trusts the defendants said they hold in capacities other than those in which they are sued. There is no reason why costs should not follow the event in respect of the plaintiffs’ application for discovery again in relation to which they were largely successful.

[20]Accordingly, there is a further costs award in favour of the plaintiffs of

$6,871.25 plus the filing fee of $500.00.

[21]      Again, I do not accept the defendants’ submission that the plaintiffs brought a single application for discovery and therefore are only entitled to one set of costs on that application. That multiple applications were sought in the one application is not,

in my view, grounds for treating the different applications involving different issues as if they were one application.

Confidentiality argument

[22]      The plaintiffs were successful in seeking relaxation of the confidentiality conditions. They seek costs on a 2B basis in the sum of $1,852.25. I award costs in that sum in their favour.

Disbursements

[23]      Annexed to the plaintiffs’ memorandum of 25 October 2022 is a schedule of disbursements. Those totals and how they have been attributed I do not read as being disputed by the defendants. Accordingly, disbursements are awarded in accordance with that schedule to the extent they have not already been dealt with above.

By whom are the costs payable?

[24]      Again as a schedule to the plaintiffs’ costs submissions of 25 October 2022 is a breakdown of who the plaintiffs say should pay the costs awarded. No issue is taken with that schedule. Accordingly, I direct that the costs are payable as per that schedule. I reserve leave to apply in respect of this issue should there be any issue in that regard.

[25]      For the avoidance of doubt, I accept the plaintiffs’ submissions that the executors of the estate of Earl Hagaman are personally responsible for the costs awarded against them as executors. The executors are personally responsible for the obligations they incur, subject to their right to be indemnified from the estate.

Associate Judge Lester

Solicitors:

Duncan Cotterill, Christchurch (for Plaintiffs)

Cameron & Co, Christchurch (for Second Defendant) Meares Williams, Christchurch (for First Defendant) South Law, Dunedin (for Third Defendants)

Copy to counsel:

A R Galbraith KC, Barrister, Auckland (on behalf of Plaintiffs)

M G Colson KC, Barrister, Wellington, (for First Defendants in relation to joint interest privilege issues)

J B M Smith KC, Barrister and J W Wass (for First and Second Defendants in relation to s 66(4) Evidence Act 2006 issue)

O W Jacques, Barrister, Wellington (for First and Second Defendants in relation to s 66(4) Evidence Act 2006 issue)

J L W Wass, Barrister, Wellington (for First and Second Defendants in relation to s 66(4) Evidence Act 2006 issue)

V L Heine KC, Barrister, Wellington (for non-party Estate E R Hagaman)