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…

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 Jones v Jones

Details

AGLC: Jones v Jones [2021] NZHC 1680
Case: [2021] NZHC 1680
Decision Date: 7 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Jones v Jones was heard by Lang J, who was acting as the Duty Judge. The applicant, Katherine Mary Jones, sought costs from the first respondent, Nicola Ann Jones, after orders were made by consent to remove the parties as administrators of their late mother's estate and to appoint new administrators. The second respondent, Michael Alexander Jones, was also involved in the proceedings.

The legal issues that the court had to decide were whether the applicant was entitled to costs from the first respondent and, if so, who should bear the responsibility for those costs. The applicant had initially faced difficulties in serving the first respondent but had obtained an order for substituted service. The second respondent had raised a procedural objection, but later withdrew it. The first respondent consented to the orders sought by the applicant after being served.

Lang J determined that the applicant was the successful party and would ordinarily have ordered costs in her favour against both respondents. However, because of the agreement between the applicant and the second respondent, the court could not make such an order. Lang J also found that it was not appropriate for the first respondent to be solely liable for costs, given that she had consented to the orders sought. The court held that the applicant also bore some responsibility for the costs incurred because she had elected to use an incorrect procedure. Lang J therefore ordered that the costs of the proceeding be paid from the estate of the deceased, to be shared equally by all three children.

Orders