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Hamilton v Kirwan

Hamilton v Kirwan

Case [2021] NZHC 634 26 March 2021

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NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000322

[2021] NZHC 634

UNDER

AND
the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER OF

AND

The Estate of DESMOND WAYNE HETHERINGTON

IN THE MATTER OF

the COVE ROAD TRUST

BETWEEN

KEELEY FLEUR HAMILTON

Plaintiff

AND

DESMOND MICHAEL KIRWAN

First Defendant

CRAIG DESMOND HETHERINGTON

Second Defendant

Hearing: On the papers

Counsel:

L Kearns and J S Langston for the Plaintiff P Moodley for the First Defendant

G C Jenkin for the Second Defendant

Judgment:

26 March 2021

JUDGMENT OF WOOLFORD J

[As to Costs (No. 2)]

This judgment was delivered by me on Friday, 26 March 2021 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

HAMILTON v KIRWAN [2021] NZHC 634 [26 March 2021]

Introduction

[1] On 24 August 2020, I gave judgment allowing in part the plaintiff Ms Hamilton’s claim against the first defendant Mr Kirwan, the executor of her late father’s estate. I dismissed her claim against her brother, Mr Craig Hetherington, the second defendant, the sole trustee of the Cove Road Trust, to which trust her late father had made a significant inter vivos disposition before his death.1

[2] The background to the proceeding, and the reasons for judgment, are expressed fully in my substantive judgment. They do not need to be repeated here.

[3] At the conclusion of that judgment, observing that costs ordinarily follow the event, I reserved leave to the parties to file memoranda in the event they were unable to agree as to costs. They were not.

[4] So, on 25 January 2021, I issued a judgment as to costs.2 For the reasons given there, and having regard to the fact both the plaintiffs and defendants had a measure of success I ordered that:3
(a)the first and second defendants are to pay Ms Hamilton’s costs in respect of her first through fifth causes of action on a 2B basis, plus disbursements as relate to those causes of action only, provided that she is to be entitled to costs on the basis of a two day hearing only in respect of steps 30, 32, and 34 of sch 3 to the High Court Rules 2016;

(b)Ms Hamilton is to pay the first and second defendants’ costs in respect of their success in respect of the sixth and seventh causes of action on a 2B basis, and their disbursements as relate to those causes of action only.

[5] As I noted, it was envisaged there would be some off-setting of the parties’ costs, once quantum was established with the lesser sum to be off-set against the greater once computed.4

[6] It was…

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 Hamilton v Kirwan

Details

AGLC: Hamilton v Kirwan [2021] NZHC 634
Case: [2021] NZHC 634
Decision Date: 26 March 2021

CaseChat Overview and Summary

This case involved a claim for costs in the High Court of New Zealand by Keeley Fleur Hamilton against Desmond Michael Kirwan, the executor of her late father's estate, and Craig Desmond Hetherington, the sole trustee of the Cove Road Trust, to which trust her late father had made a significant inter vivos disposition before his death. The substantive judgment was given on 24 August 2020, with a costs judgment following on 25 January 2021. The current judgment addresses further issues arising from the parties' inability to agree on the quantum of costs. The primary issues were whether the defendants could be ordered to pay Ms Hamilton's costs from the residuary of her father's estate, the quantum of Ms Hamilton's costs, and the quantum of the defendants' costs. The Court held that the defendants could not be ordered to pay Ms Hamilton's costs from the residuary of her father's estate, but were jointly and severally liable for her costs. The Court fixed Ms Hamilton's entitlement to scale costs and disbursements at $57,335.27, and the defendants' entitlement to scale costs at $13,037.25 and $3,561.30, respectively. The final order was that the first and second defendants pay Ms Hamilton's costs in the amount of $40,737.02.

Orders