Johnston-O'Loughlin v Johnston - [2025] NZHC 733

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000783

[2025] NZHC 733

UNDER THE Administration Act 1969 and the Property Law Act 2007

IN THE MATTER OF

Estate of Heather Joy Johnston

BETWEEN

DESTINEE-JOY JOHNSTON- O’LOUGHLIN

Applicant

AND

CUSHLA-JOY JOHNSTON

Respondent

Hearing: On the papers at Auckland

Judgment:

1 April 2025

JUDGMENT (NO.2) OF POWELL J

[Costs]

This judgment was delivered by me on 28 March 2025 at 12.00 pm.
Pursuant to R 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar

DESTINEE-JOY JOHNSTON-O’LOUGHLIN v CUSHLA-JOY JOHNSTON [2025] NZHC 733 [1 April 2025]

[1] By judgment dated 25 February 2025 I granted Destinee-Joy Johnston- O’Loughlin’s (“Destinee-Joy”) application to remove Cushla-Joy Johnston (“Cushla-
Joy”) as an administrator of the Estate of Heather-Joy Johnston.1

[2] I indicated that my preliminary view was that Destinee-Joy was entitled to costs. I fixed a timetable for the filing of the submissions and indicated that any issue of costs would be determined on the papers.2 Submissions were subsequently filed as directed.

The position of the parties

[3] Destinee-Joy has confirmed her actual costs were $26,364 and seeks costs in either the sum of $24,695, or $23,616 together with disbursements of $970. The larger sum of costs sought is a mixture of scale, increased and indemnity costs for different stages of the proceedings, while the second figure is scale costs increased by 50 per cent. Destinee-Joy also seeks a direction that the costs be paid directly out of Cushla- Joy’s share of the estate following the sale of the property.

[4] Specifically, Destinee-Joy submits, with reference to r 14.6(3) of the High Court Rules 2016 (Rules) and Bradbury v Westpac Banking Corporation,3 her application was necessary, and while scale costs were appropriate up to the point Cushla-Joy agreed to the order for sale,4 her subsequent conduct justifies the increase in costs sought. She points in particular to Cushla-Joy initially agreeing to, and then pulling out of an agreement for sale and purchase of the property, refusing to engage with the proceedings, and failing to file any opposition but appearing at the hearing anyway.

[5] In response, while Cushla-Joy opposes any award of costs, her submissions are directed at the substance of the application itself, rather than the issue of costs or the quantum of costs now sought. By way of illustration, Cushla-Joy submits “that the

1 Johnston-O’Loughlin v Johnston [2025] NZHC 276 [Judgment].
2 At [19].
3 Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [27] and [204]–[209].
4 Judgment at [6].

current applications should not proceed any further”, and instead seeks the following orders in response to the application for costs:

·Postpone the sale of the property until the issues of false statements and the respondent’s rightful entitlement are fully addressed.

·Consider equitable relief for the respondent in recognition of her dedication and commitment she displayed during the last 5 years of her mother’s life.

·Investigate the accuracy and…

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.

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Details

Case: [2025] NZHC 733
Decision Date: 1 April 2025

CaseChat Overview and Summary

Destinee-Joy Johnston-O'Loughlin applied to remove Cushla-Joy Johnston as an administrator of the estate of Heather-Joy Johnston, following which the court granted Destinee-Joy's application and indicated it would consider the issue of costs. The court was required to determine the appropriate amount of costs to award Destinee-Joy, given her successful application to remove Cushla-Joy and her submission for increased costs due to Cushla-Joy's conduct in the proceedings.

The court noted that ordinarily, the unsuccessful party pays the successful party's costs, but the court retains discretion to award indemnity costs or increased costs if warranted. The court considered that Cushla-Joy's conduct in blocking the sale of the property and taking a spoiling role in the proceedings had contributed unnecessarily to the time and expense of the proceeding. However, the court found that a 30% increase to the scale costs was appropriate, resulting in a total of $20,467.20 in costs. The court also found that the disbursements sought were reasonable. The court declined to order that the costs be paid directly from Cushla-Joy's share of the estate, following the reasoning in Hennessey v Hennessey.

Cushla-Joy Johnston is to pay Destinee-Joy Johnston-O'Loughlin the sum of $20,467.20 in costs together with $970 in disbursements, a total of $21,437.20.

Orders