Joan v Mary

[2012] NZHC 2856

ORDER PROHIBITING PUBLICATION OF ANY IDENTIFYING PARTICULARS OF DECEASED PERSON, PLAINTIFF OR DEFENDANTS

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2011-412-000214 [2012] NZHC 2856

IN THE MATTER OF     Estate of PAULINE

BETWEEN  JOAN Plaintiff

ANDMARY AND CHRISTINE AS EXECUTORS AND TRUSTEES First Defendants

ANDCHRISTINE Second Defendant

Hearing:         31 October 2012 (On Papers) Counsel: P Gibson for Plaintiff

S Hembrow for Defendants

Judgment:      31 October 2012

JUDGMENT OF WHATA J ON COSTS

[1]      This is my judgment on costs in this matter.

[2]      In my primary judgment[1] I indicated that I was minded toward the plaintiff ’s costs on a 2B basis up to the point of settlement.   However, I wanted to see the allocation of costs before doing so.

[1] Joan v Mary & Christine as Executors and Trustees [2012] NZHC 1830.

[3]      I have now received memorandum from counsel dealing with costs.   The plaintiff identifies a settlement date of 11 October 2011.   This date is fixed by

reference to the minute of Associate Judge Osborne approving the settlement deed reached between the plaintiff and the second defendant.  A schedule of costs is then provided relating to attendances up to and including 11 October.   The total costs claimed are $12,257.04, including disbursements.

[4]      Counsel  for  the  first  defendant  does  not  agree  with  the  settlement  date. Mr Hembrow refers to an affidavit of the plaintiff dated 25 July 2011 attaching a copy of the deed of settlement reached with the second defendant.   He submits, therefore, that that must be the latest possible date for the settlement.  He submits that the only claims that could be made by the plaintiff includes those up to and inclusive  of  the  notice  to  answer  interrogatories  because  the  application  to discontinue proceedings was not required because:

... it was open to the Plaintiff to simply discontinue totally or, simply discontinue reserving the issue of costs against my client.    As a result the total claimed by the Plaintiff should be reduced to the sum of $9,813.04.”

[5]      Mr Hembrow also submits that I should take into account the costs incurred by the first defendant  post settlement and that as this matter should  have been litigated in the District Court, I should refer to the costs payable under the District Court Rules.

[6]      Overall, Mr Hembrow submits that there should in fact be no award of costs.

Assessment

[7]      As stated at r 14.1, the costs in any case are at the discretion of the Court.  I have resolved that the plaintiff is entitled to costs on a 2B basis up to the point of settlement, subject to my review of the costs in fact incurred.

[8]      Dealing with the precise quantum of costs, success, complexity and the appropriate  daily  recovery  rate,  are  all  relevant  factors.    In  addition,  as  far  as possible,  the  determination  of  costs  should  be  predictable  and  expeditious.2[2]    A

distinct and complicating factor in this case is that this matter should never have

been the subject of High Court proceedings.  At most it should have been dealt with at the District Court level.  There is then the added feature that in my judgment I formed  the  view  that  an  adequate  disposition  had  been  made  at  the  point  of settlement reached with the then second defendant.   I therefore do not consider it appropriate to apply the assessed recovery rates in a rote way.  That would be unfair to the first defendant.

[2] r 14.2.

[9]      I am also of the view that the settlement date should not be benchmarked against the Associate Judge’s minute.   It was in the plaintiff’s hands to determine whether and what way she should proceed once she had reached settlement.   I therefore accept the defendant’s contention that the base sum in accordance with the normal recovery rates is $9,813.04.  I also consider that there is some merit in the defendant’s suggestion that the proper benchmark for a reasonable rate is that set by the District Court Rules.  But having said all of that, the first defendant must accept some responsibility for the way matters have transpired, and in particular having regard to her pre-emptory act of distributing the estate in advance of affording the plaintiff an opportunity to vindicate her claim.

[10]     In these unusual circumstances, I consider that an award to the plaintiff of

$7,000 for costs and disbursements in total is appropriate in this case. [11]    Orders accordingly.

Solicitors:

Diana Shirtcliff, Christchurch, for Plaintiff (Counsel: S Hembrow) Gascoigne Wicks, Blenheim, for Defendants (Counsel: P Gibson)