Khan v Knox - [2023] NZHC 681

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-1

[2023] NZHC 681

IN THE MATTER of an originating application under Part 19 High Court Rules 2016

IN THE MATTER

of an application to validate a Will

IN THE MATTER

of the Estate of Adrienne Judith Elizabeth Peacock

BETWEEN

JAMAHL SEAN KHAN and JOHN PEACOCK

Applicants

AND

SARAH KNOX, MURRAY DOWNS and SALEEM PAUL KHAN

Respondents

Judgment:

(On the papers)
30 March 2023

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 30 March 2023 at 3.30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Clark and Brown (Hamilton) for Applicants
Grayson Clements (Hamilton) for Respondent Saleem Khan McCaw Lewis (Hamilton) for the Estate
C Murray Earl (Hamilton) for minor children
Niemand Peebles Hoult (Hamilton) for minor grandchildren

KHAN v KNOX [2023] NZHC 681 [30 March 2023]

Introduction

[1]This is a costs judgment.

[2]Following my substantive judgment1 the applicants and respondent seek costs.

[3] The case concerned the validity of a Will of Ms Adrienne Judith Elizabeth Peacock. The applicants were Mr Jamahl Khan, one of Ms Peacock’s sons, and Mr John Peacock, Ms Peacock’s ex-husband. The respondent was Ms Peacock’s other son, Mr Saleem Paul Khan (who has changed his name to Samuel Jay Steel so I will refer to him as “Mr Steel”).

[4] In my judgment, I dismissed the application. I was “not satisfied, on the balance of probabilities, that either or both of the 2016 draft Will and the 2017 document represent Ms Peacock’s testamentary intentions at the time of her death.”

[5] Before me now are several memoranda as to costs. First, Mr Steel as the successful party claims costs against the applicants on an indemnity basis and in the alternative standard 2B scale costs. Second, Mr Khan seeks costs against the estate on an indemnity basis and in the alternative standard 2B scale costs. The applicants oppose Mr Steel’s claim they should be liable for his costs. Third, the estate’s lawyers make submissions on the law. Finally, the grandchildren’s counsel submits that their legal fees should be paid by the estate. No party takes issue with the grandchildren’s costs being paid by the estate.

Submissions for the applicants

[6] Mr O’Neill submits that the estate should indemnify Mr Khan’s costs in bringing the application. Mr O’Neill submits that Mr Peacock is an applicant in name only. The thrust of the submissions is that Mr Khan should be indemnified by the estate because the steps he took to bring the application and put before the Court the draft Wills was a reasonable and responsible step. In effect, the application was in the interests of the estate despite the fact that Mr Khan would have personally benefitted from the 2017 document being recognised as an effective Will.

1 Khan v Knox [2022] NZHC 2577.

[7] Mr O’Neill submits it would be unfair for Mr Khan to be liable to pay any…

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 Khan v Knox

Details

AGLC: Khan v Knox [2023] NZHC 681
Case: [2023] NZHC 681
Decision Date: 30 March 2023

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton Registry, considered an application to validate the Will of Adrienne Judith Elizabeth Peacock, with Jamahl Sean Khan and John Peacock as applicants and Sarah Knox, Murray Downs, and Saleem Paul Khan (referred to as Mr Steel) as respondents. The applicants sought to validate two draft Wills, but the Court found that neither document represented Ms Peacock’s testamentary intentions at the time of her death, leading to the dismissal of the application. The court was required to decide on the allocation of costs between the parties involved. The applicants argued that the estate should indemnify Jamahl Khan’s costs, asserting that his involvement was reasonable and in the interests of the estate. The respondents contended that the applicants, particularly Jamahl Khan, should bear the costs as they stood to benefit personally from the validation of the Will. The Court applied established legal principles for costs in estate cases, finding that the ambiguity in Ms Peacock’s testamentary intentions fell under the first category of cases in Re Patterson (deceased), where costs should be borne by the estate. The Court also noted that the law of costs in estate cases differs from that in trust cases, and thus, Jamahl Khan’s personal benefit did not preclude him from costs. The Court assessed the reasonableness of the costs claimed by both Jamahl Khan and Mr Steel, finding the amounts claimed to be reasonable, and ordered that the estate of Ms Peacock pay the costs of all parties involved.

Orders