Howarth v Howarth - [2022] NZHC 602

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-272

CIV-2018-419-274 [2022] NZHC 602

UNDER Section 21 of the Administration Act 1969, section 51 of the Trustee Act 1956 and the Family Protection Act 1955

IN THE MATTER

of the Estate of JACK HOWARTH

BETWEEN

DAVID JOHN MACMILLAN HOWARTH

First Plaintiff

JACQUELINE ELLEN KEEN
Second Plaintiff

AND

ANDREW ROBERT HOWARTH

Defendant

Judgment:

(On the papers)
30 March 2022

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 30 March 2022 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Rennie Cox (Auckland) for Plaintiff
Stace Hammond (Hamilton) for Defendant

HOWARTH v HOWARTH [2022] NZHC 602 [30 March 2022]

Introduction

[1]This is a costs judgment.

[2]In my substantive judgment,1 I:

(a)ruled in favour of the plaintiffs on their claim for maintenance and support from the estate of their late father pursuant to the Family Protection Act 1955 (the Act); and

(b)refused the plaintiffs’ application to remove the defendant, their brother, as executor and administrator of their father’s estate.

[3] The parties’ late father left his entire estate of approximately $335,000 to the defendant. I awarded each of the plaintiffs $60,000.

[4] I directed the parties to file memoranda as to what costs should be awarded. They have done so. Their positions are diametrically opposed. The plaintiffs submit costs should be awarded in their favour totalling $76,245.70.2 The defendant submits costs should be awarded in his favour totalling $112,530.00.3

The plaintiffs’ submissions

[5] The plaintiffs submit that the effect of a direction by Lang J that the two proceedings be heard together was to make the claim under the Act the primary focus of the substantive hearing and to significantly narrow the issues to be determined in the removal application at the hearing.4 They submit further that the discovery process which took place in the course of the removal application, and the evidence adduced

1      Howarth v Howarth [2021] NZHC 2521.
2      In particular, they seek an award of costs in the proceeding under the Act for $74,270.00 and disbursements of $10,327.20. The plaintiffs submit that award should be set off under r 14.17 of the High Court Rules 2016 against an award of costs in favour of the defendant in the removal application in the sum of $8,394.50 together with reasonable disbursements.
3      The defendant submits further that he should be awarded costs of approximately $6,000 for preparing the submissions on costs.
4      As I noted at [12]–[13] of my judgment, the plaintiffs no longer sought to have the defendant removed so that an independent investigation could take place into payments made by Mr Howarth to the defendant. However, the plaintiffs continued to seek removal of the defendant as executor on the grounds that they believed the plaintiffs and defendant could not work together due to the hostility between them.

in relation to the amounts received by the defendant during Mr Howarth’s lifetime, were used…

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 Howarth v Howarth

Details

AGLC: Howarth v Howarth [2022] NZHC 602
Case: [2022] NZHC 602
Decision Date: 30 March 2022

CaseChat Overview and Summary

The case of Howarth v Howarth involved a costs judgment in relation to proceedings brought by two daughters, David John MacMillan Howarth and Jacqueline Ellen Keen, against their brother, Andrew Robert Howarth, regarding the estate of their late father, Jack Howarth. The daughters sought maintenance and support from their father's estate under the Family Protection Act 1955 and sought to remove their brother as executor and administrator of the estate. The court ruled in favour of the daughters on their claim for maintenance and support but refused their application to remove their brother as executor. The daughters were each awarded $60,000 from the estate. The court was required to decide the issue of costs between the parties. The daughters argued that costs should be awarded to them from the estate, while their brother argued that costs should be awarded to him or that the estate should not be liable for costs. The court rejected the brother's argument for indemnity costs, finding that the daughters' allegations of fraud were not knowingly false or irrelevant. The court found that there was an operative Calderbank offer from the brother to divide the estate evenly between the siblings, which the daughters had rejected. The court concluded that the brother was entitled to scale costs as a result of the daughters' rejection of the Calderbank offer. The court awarded the brother costs on a 2B scale basis totalling $53,297 but declined to award costs for preparing costs submissions. The court declined to order that the brother's costs be paid by the estate, finding that there had been an appropriate Calderbank offer.

Orders