Khophimai v Laurenson - [2019] NZHC 1953

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2017-441-37

[2019] NZHC 1953

UNDER Section 14 of the Wills Act 2007

IN THE ESTATE

Of Kelvin John Norman Naysmith (also known as Kelvin Jon Naysmith)

BETWEEN

PHENSRI KHOPHIMAI

Applicant

AND

CARLENE ELIZABETH LAURENSON, BRENT NAYSMITH, GARY JOHN NAYSMITH, DEBORAH ANNE NAYSMITH, KIM BEVERLEY HERBST, LEANNE NAYSMITH AND WAYNE NAYSMITH

Respondents

Hearing: On the papers

Counsel:

Z Top for Applicant

D M Hughes, Auckland for Respondents

Judgment:

12 August 2019

JUDGMENT OF CLARK J (COSTS)

[1] In September 2018 I granted Ms Khophimai’s application for a declaration as to the validity of the will of Kelvin John Naysmith and concluded she was entitled to costs on a 2B basis.1 The parties were invited to submit memoranda within 20 days if they were unable to agree costs.

1 Khophimai v Laurenson [2018] NZHC 2435.

KHOPHIMAI v LAURENSON & ORS [2019] NZHC 1953 [12 August 2019]

[2] As it happens Ms Khophimai’s memorandum was not filed until 22 May 2019. Ms Tope, counsel for Ms Khophimai, sought leave to file the memorandum out of time. Mr Hughes, who is acting for the respondents (represented by their sister, Ms Laurenson) on a pro bono basis did not take the point. Indeed, Mr Hughes apologised for the lateness of filing his memorandum having only recently been instructed in relation to the cost aspect of the proceeding.

[3] It is inefficient to deal with costs so many months after judgment. Both the court file and the judge’s recall of circumstances bearing on the costs exercise, must be resurrected. That said, in the circumstances of this case it would be unjust to refuse to entertain the application on the grounds of lateness given Ms Khophimai’s attempts to settle costs. The efforts have been unsuccessful but the delay in filing is attributed to those efforts.

[4]Ms Khophimai seeks the following costs:

Steps in proceeding

Allocated

Days/part days

Rate ($2,230.00

Daily)

Commencement of proceedings by Plaintiff for variation of Will

3

6,690

Filing Originating application for validation of will and supporting affidavits

2

4,460

Filing Interlocutory Application (directions as to service)

0.6

1,338

Preparation of written submissions (as to service) 1.5 3,345

Sealing order or judgment (as to service) 0.2 446

Preparation of First Case Management conference 0.4 892

Reply 0.8 1,784

Appearance at First Case Management conference 0.3 669

Filing Interlocutory Application (security for costs) 0.6 1,338

Filing Memorandum for case management conference (scheduled 28 August 2017) 0.4 892

Appearance at case Management conference 28 August

2017
0.3 669

Preparation of written submissions regarding security of costs 1.5 3,345

Obtaining Judgement without appearance (Security of

costs declined)
0.3 669

Plaintiff’s preparation of affidavits 2.5 5,575

Preparation of hearing 3 6,690

Preparation of written submissions 1.5 3,345

Preparation of Applicant bundle for hearing 0.6 1,338

Appearance at Hearing for principal counsel 1 2,230

Sealing of Order and Judgment on costs 1 446

Total 46,161.00

[5]The following disbursements are also sought:

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: [2019] NZHC 1953
Decision Date: 12 August 2019

CaseChat Overview and Summary

In Khophimai v Laurenson, the High Court of New Zealand, Napier Registry, dealt with an application for a declaration as to the validity of the will of Kelvin John Norman Naysmith and a subsequent application for costs. The applicant, Phensri Khophimai, sought to declare the will valid and receive costs. The respondents, Carlene Elizabeth Laurenson and others, opposed the validity of the will and contested the costs. The court had to decide whether Khophimai was entitled to the costs claimed, including whether some of the claimed costs were duplicative, and if certain costs, such as those for unsuccessful interlocutory applications, should be awarded.

The court found that Khophimai was entitled to costs on a 2B basis, meaning the costs would be fixed and not assessed. The court accepted that Khophimai's costs schedule contained some overlap and that certain costs for unsuccessful applications should not be awarded. The court also determined that Khophimai was entitled to reimbursement for most of the claimed disbursements, except for the filing fee for a security for costs application that was not successful. The court concluded that Khophimai was entitled to a reduced amount of costs, totalling $26,314, which included costs for the preparation and filing of affidavits, court appearances, and preparation for the hearing, but excluded costs for unsuccessful applications and certain duplicative items. The court emphasized the need for costs to be reasonable and specific to the conduct of the proceeding.

In summary, Khophimai was granted a reduced amount of costs, excluding certain unsuccessful applications and overlapping items, and was awarded most of the claimed disbursements. The court's decision highlighted the importance of costs being proportionate and related to the litigation process.

Orders