Harrison v Harrison HC Wellington CIV 2005-485-2673

[2007] NZHC 1573

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2005-485-2673

UNDER  The Family Protection Act 1955

IN THE MATTER OF     The Estate of the late RONALD HARRISON (aka RONALD GRAHAM HARRISON formerly of Hood Avenue, Upper Hutt, Retired, Deceased

BETWEEN  KEITH RAYMOND HARRISON AS EXECUTOR AND TRUSTEE OF THE ESTATE OF RONALD HARRISON Plaintiff

ANDRAYMOND TURNER HARRISON AS CAVEATOR

First Defendant

ANDRAYMOND TURNER HARRISON AND THOMAS JUDE PETERS AS TRUSTEES AND EXECUTORS OF THE PENULTIMATE WILL OF THE DECEASED

Second Defendants

ANDBRUCE GEOFFREY HARRISON AND IAN GRAHAM HARRISON

Third Defendants

Judgment:      2 February 2007 at 2.15 pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 2.15pm on the 2nd day of February 2007.

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

[1]      This  matter  had  been  set  down  for  a  Judicial  Settlement  Conference  on

Wednesday 6 December 2006 at 10.00am.

HARRISON  V HARRISON  AND ORS HC WN CIV-2005-485-2673  2 February 2007

[2]      On 5 December 2006 counsel for the plaintiff filed a memorandum which stated that:

The plaintiff has instructed that he does not wish to attend the settlement conference and requests that the matter is set down for hearing…

[3]      Counsel  for  the  defendant  has  indicated  that  he  was  not  informed  that  the plaintiff was not to attend the settlement conference until 4.30pm on 4 December 2006. In the meantime, counsel for the defendant had prepared and on 26 October 2006 he had filed  in  this  Court  a  detailed  memorandum  for  the  purposes  of  the  settlement conference.  In addition, it seems one of the third defendants Mr Ian Harrison had made arrangements to travel to Wellington to attend the settlement conference on 6 December

2006  and  had  incurred  a  non-refundable  airfare  from  Christchurch  (where  he  is employed and resides) to Wellington for this purpose.

[4]      The  defendants  now  seek  an  award  of  costs  and  disbursements  against  the plaintiff with respect to the vacated settlement conference.

[5]      Counsel for the defendants has filed memoranda dated 5 December 2006 and 18

December 2006 as to this costs question.   Counsel for the plaintiff advises that the plaintiff opposes any order of costs and disbursements, and counsel has filed a memorandum dated 15 December 2006 to this effect.

[6]      I have had an opportunity to consider those memoranda.   I now provide my decision on the costs issue.

[7]      The background to this matter begins with a joint memorandum by counsel for the plaintiff and counsel for the first defendant dated 14 September 2006 which was filed  in  the Court  for  the call  of  this  matter  in  the Judge’s  Chambers  List  on  18

September 2006.  This memorandum provided at paragraphs 9 and 10:

9.The  next  step  absent  timetabling  of  affidavits  in  the  family  protection proceedings and then setting down for hearing is a settlement conference.  It is suggested that the ultimate disposal of these proceedings which have yet to reach the High Court, await until the outcome of the settlement conference is known.

10.      Thus the next step respectfully suggested is a settlement conference under Rule

442.  The estimated time is one half day.  It is envisaged the three deceased’s

grandsons which include the plaintiff as well as the deceased’s son, who are the affected parties in both proceedings, attend the conference so that in the event a solution is reached, it will encompass both sets of proceedings.

[8]      I repeat that the request for a Rule 442 settlement conference was made, and the

14th  September 2006 Joint Memorandum was signed, by both counsel for the plaintiff and counsel for the defendants.

[9]      At the call of this matter on 18 September 2006 Her Honour Justice Mallon ordered that a settlement conference take place and that this was to occur at 10.00am on

6 December 2006.

[10]     The next event appeared to be the filing on 26 October 2006 by counsel for the first  defendant  of  his  memorandum  for  the  settlement  conference  (running  to  four pages), together with 12 attachments.  These included various wills of the deceased, a Hutt Hospital Discharge Sheet relating to the deceased, a copy of a Trespass Notice issued to the first defendant, solicitor’s file notes and memoranda, and an e-mail from the plaintiff.

[11]     As I have noted above, nothing further appeared to happen until the morning of

5 December 2006 (at 9.24am from the note on the facsimile copy of his memorandum) when counsel for the plaintiff advised the Court that the plaintiff would not attend the settlement  conference  on  6  December  2006  and  requested  that  the  conference  be vacated.

[12]     Other material before the Court which appears to be relevant here includes a copy of an e-mail dated 15 December 2006 from the plaintiff Mr Keith Raymond Harrison to the third defendant Mr Ian Graham Harrison (and possibly others) which states in part:

With regard to the so-called “settlement conference”, I did not ask for it, and had directed that it be cancelled three months before it finally was.  I was also unaware that you would be attending it Ian.   If I had attended there would have been of no more advantage to you than as matters turned out.  So what I did saved both of us time and money.

This  e-mail  was  provided  to  the  Court  by  counsel  for  the  defendant  with  his memorandum of 18 December 2006.

[13]     Neither the plaintiff nor counsel for the plaintiff has made any comment with respect to this 15 December 2006 e-mail from the plaintiff.  The statements in the e-mail are rather puzzling, given that first the settlement conference was ordered upon the direct request and consent of both counsel for the plaintiff and counsel for the defendants,  and  secondly,  that  the  first  occasion  upon  which  the  Court  and  the defendants were advised that the plaintiff would not be attending the settlement conference was only 4 or 5 December 2006.

[14]     With these factors in mind, I turn now to consider the defendants’ request for an order for costs and disbursements against the plaintiff.

[15]     In  my  view,  consideration  of  this  matter  is  assisted  by  a  consideration  by analogy of Rule 476C High Court Rules.  This rule states:

476C.   Costs

Unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[16]     Although it is clear from the definition of “proceeding” in r3 High Court Rules that it is to mean any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application (and probably therefore excludes a Judicial Settlement Conference), as I see it here, the plaintiff’s last minute refusal to attend the settlement conference (requested earlier by his counsel jointly with counsel for the defendants) must be seen in similar vein to a discontinuance of that aspect of this proceeding.

[17]     No proper reason has been given for this decision on the part of the plaintiff which aborted the settlement conference.   The defendants appear to have been taken entirely by surprise when the plaintiff advised his decision not to attend the settlement conference.  Counsel for the defendants had prepared and filed a detailed memorandum for  the  settlement  conference  and,  as  envisaged  by  paragraph  10  of  counsel’s  14

September 2006 Joint Memorandum, travel arrangements had been made for Mr Ian

Harrison to fly to Wellington to attend the conference.

[18]     In my view this is an entirely different situation from a settlement conference proceeding and reaching no final conclusion.  Here the plaintiff, despite his statement on 15 December 2006 that some three months earlier he had directed that the settlement conference be cancelled, must be seen as simply “pulling the plug” on the conference at the last minute despite the defendants indicating that they were fully prepared to attend the conference.  Conduct of this nature on the part of the plaintiff must be viewed with concern.

[19]     In response to the defendants’ request for costs, counsel for the plaintiff in his 15

December 2006 memorandum providing submissions as to costs noted:

2.In my submission, while it is regrettable that the settlement conference had to be vacated, it is not appropriate to award costs which should be reserved at least and considered in the round once the outcome of proceedings is known.

3.With respect there seems to be an inherent difficulty in awarding costs at this time when the purpose of the conference is to discuss matters in confidence and where if no outcome is reached, no award is  made  in  respect of anything including costs, the Presiding Judge then disqualifies him or herself from the proceedings and the papers associated therewith are returned to the parties.  An award signals that one side is at fault in its attitude to settlement and that can never be the case when there is an undeniable right to have issues tested in the Court subject to, if need be, a Calderbank letter exchanged by the parties which my be the subject of a costs award later.  If the plaintiff had proceeded with the conference and refused settlement, to pose the question, would the Court have awarded costs because its time had been wasted? The answer is no.

4.There are other difficulties I suggest.  The Notice of Conference requests that the parties attend with their list of issues with a summary of settlement expectations.  It does not require, nor should it, a summary of position before the conference particularly of the kind that was made here.  The submission that was received by me in the post as late as 4 December was a legal submission based on the facts as the first defendant saw them that gave no hint of any compromise whatsoever.   The will could not stand.   On reading it my client declined   to   participate   and   it   regrettably   galvanised   his   approach   to participation.  I advised the Court immediately.  At the very least the Court’s time was not wasted in the circumstances and the first defendant’s time for that matter was not either.  He has marshalled his case for the hearing in due course.

[20]     With respect, I must disagree with the thrust of these contentions put forward by counsel for the plaintiff.  As I have noted in paragraph [12] above, the plaintiff in his e- mail dated 15 December 2006 states that he had directed that the settlement conference be cancelled “three months before it finally was”.  This must raise questions concerning his  counsel’s  suggestion  that  it  was  only  after  receipt  of  the  first  defendant’s

memorandum  for  the  settlement  conference  that  the  plaintiff  made  his  decision  to decline to participate.

[21]     Further,  as  I  have  noted  at  paragraph  [18]  above,  the  situation  which  has prevailed here is quite different from a case where a settlement conference proceeded but reached no final conclusion.  Here, the plaintiff with his last minute decision not to attend  the  conference  effectively  stymied  any  possibility  of  settlement  discussions taking place under the r442 process.

[22]     In my view, an award of costs and disbursements in favour of the defendants with respect to the wasted time involved by their counsel in preparing for the settlement conference, and the wasted airfare incurred by Mr Ian Harrison is appropriate here. Despite the claim from counsel for the plaintiff to the contrary, this is not a signal that one side is at fault in its attitude to settlement generally, nor is it in any way a criticism of the plaintiff in his wish to have this matter tested at trial.   It simply reflects the Court’s concern that the plaintiff chose to wait until the last minute to cancel the settlement conference for reasons which remain quite unclear, and this action resulted in the first defendant being put to unnecessary and wasted expense.

[23]     That said, an order is now made that the plaintiff is to pay to the first defendant:

a)       Costs calculated on a category 2B basis for the wasted time in preparing for the Judicial Settlement Conference which is calculated at one half day and amounts to the sum of $800.00.

b)        Disbursements of $348.00 representing the non-refundable airfare of Mr

Ian Harrison from Christchurch to Wellington.

‘Associate Judge D.I. Gendall’

Solicitors:

Ward McCulloch, Upper Hutt for Plaintiff

Guy & Toby Manktelow, Lower Hutt for First Defendant