Jones v Jones

[2021] NZHC 1680

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-485-613095

[2021] NZHC 1680

IN THE MATTER

of the Estate of Margaret Wilma Jones

BETWEEN

KATHERINE MARY JONES

Applicant

AND

NICOLA ANN JONES

First Respondent

MICHAEL ALEXANDER JONES

Second Respondent

Hearing:

On the papers

Appearances:

G D Stringer for Applicant

W Patterson for First Respondent
L J C Loughlin-Ware for Second Respondent

Judgment:

7 July 2021

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 7 July 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

JONES v JONES [2021] NZHC 1680 [7 July 2021]

[1]        This proceeding has been referred to me to determine costs in my capacity as Duty Judge this week.

[2]        The applicant seeks costs against the first respondent after orders were made by consent removing all parties to the proceeding as administrators of the estate of their late mother and appointing administrators in their place.

Background

[3]        The applicant filed the application as an interlocutory application in the proceeding in which the parties had been appointed as administrators of their late mother’s estate. That proceeding had earlier been brought to a conclusion once the parties had been appointed as administrators.

[4]        The applicant encountered difficulties in serving the first respondent and therefore sought and obtained an order for substituted service when the proceeding was first called on 17 May 2021. By that date the second respondent had been served and appeared through counsel on 17 May. Counsel for the second respondents advised the presiding Judge, Duffy J, that the second respondent took issue with the procedure the applicant had used in commencing the proceeding. Duffy J then allocated the proceeding a fixture on 16 June 2021 to deal with this issue.

[5]        On 4 June 2021 counsel for the applicant and second respondent filed a joint memorandum advising the Court that the second respondent no longer sought to maintain her procedural objection.

[6]          On 15 June 2021 counsel for the first respondent filed and served a memorandum indicating he had just been instructed to act on behalf of the first respondent and that she consented to the orders the applicant sought. Woolford J issued a Minute on the same date making orders by consent and setting a timetable for memoranda to be served addressing the issue of costs.

The parties’ respective positions

[7]        The applicant does not seek any order as to costs against the second respondent notwithstanding the fact that the second respondent was responsible for raising the initial objection to the procedure the applicant had used to commence the proceeding. It is not known whether the second respondent has agreed to contribute to the applicant’s costs privately or whether they have agreed that costs should lie where they fall. I suspect it is more likely to be the latter.

[8]        The first respondent objects to paying costs to the applicant and submits that, if costs are to be paid at all, they should be paid from her mother’s estate.

Decision

[9]        I acknowledge that the applicant must be viewed as the successful party because she obtained the orders she sought against both respondents. This is not a proceeding that resolved or settled before it could be determined. I would therefore ordinarily have made an order for costs in favour of the applicant jointly and severally against both respondents. I am precluded from dealing with the matter in that way because of the agreement that has been reached between the applicant and second respondent.

[10]      I do not consider it appropriate for the first respondent to be solely liable for costs, particularly given the fact that she consented to the orders sought on the first call of the proceeding after she was served. That is to be contrasted with the procedural objection taken by the second respondent when the matter was first called on 15 May 2021. The applicant must also bear some of the responsibility for the costs incurred in the proceeding because I consider she elected to use an incorrect procedure.

[11]      I am therefore satisfied that justice will be done if the actual and reasonable costs and disbursements incurred by the applicant are paid from the estate of the deceased. This means all three children will share equally in the costs of the proceeding.

Lang J