Khophimai v Laurenson
[2019] NZHC 1953
•12 August 2019
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:
Disbursements Actual Cost Court Filing Fee for Originating application and Interlocutory application for directions as to service 740.00 Court Filing fee Interlocutory application for security
of costs
200.00 Court Hearing Fee for One day defended hearing 640.00 Return Airfare for expert witness Patricia James to attend defended hearing 512.00 NZ Police Costs for expert witness Patricia James to attend defended hearing 892.50 Courier service on Carlene Laurenson 12.00 Courier service 3 respondents residing in Australia 64.35 Robuk Process Document Server 46.00 Courier service to Robuk Process Document Server 5.50 Courier costs to Wellington High Court 12.50 Hawkes Bay District Health Board Interpreter fees 92.00 Office Disbursements (Photocopying, Phone Calls) 404.90 Total 3,621.40
[6] The respondents submit a costs award of $49,782 is extreme for a relatively simple originating application involving a one-day hearing. The respondents’ position is that the maximum the applicant can be awarded pursuant to the High Court scale is
$26,760. Their reasons are as follows:
(a)There is an element of “triple-dipping” in the applicant’s costs schedule. The claims for “commencement of proceedings by plaintiff for validation of will”, “filing originating application for validation of will and supporting affidavits”, and “preparation of affidavits” are for essentially the same thing. Consequently, the costs should be decreased by $6,690.
(b)The sum claimed should be decreased by a further $5,575 to reflect the removal of the amount sought for the preparation of affidavits.
(c)Regarding the costs claimed for substituted service, the respondents’ position is that the straight-forward interlocutory application for substituted service does not warrant the costs entitlement under the schedule for interlocutory applications and therefore the Court should exercise its discretion and award an amount less than the $5,129
claimed.
(d)As to the $1,784 claimed for “reply”, the applicant was not required to reply and therefore the costs claimed should be further decreased by this amount.
(e)As the applicant was unsuccessful in her application for security for costs the respondents should not be required to pay costs on that application (totalling $5,352).
(f)The respondents note that I ordered costs but did not order payment of disbursements. Therefore, the respondents are not liable to pay any of the applicant’s disbursements.
(g)As the will was not validly executed, the respondents say the bulk of the applicant’s costs would have been incurred regardless of the respondents’ opposition to the application and this is a factor relevant to the exercise of the Court’s discretion as to costs.
[7] More generally, Mr Hughes submits it is important for the Court to bear in mind Ms Laurenson is a lay litigant who was originally placed on notice by counsel for the applicant that costs would be in the vicinity of $20,000–$25,000 if Ms Laurenson failed in her opposition to the application. She was not put on notice of the possibility of the sum now claimed and was therefore not “accurately warned”. The applicant should be held to the amount foreshadowed which, the respondents note, is similar to the costs award proposed by the respondents.
[8] Finally, it is said that the exclusion of the family from their father’s will has had a profound impact on Ms Laurenson and a significant cost award will do nothing to restore family relations. Further, “the respondent does not have the money to meet an award”.
Assessment
[9] The applicant concedes the costs should be reduced by $6,690 but maintains her costs claim in respect of the preparation and filing of affidavits — to which I now turn.
[10] Putting aside the affidavits in support of the application for security for costs (because that application was unsuccessful, and costs are not payable to the applicant) six affidavits were filed by the following deponents in support of Ms Khophimai’s originating application:
(a)Ms Khophimai’s affidavit in support of her application for a declaration and in support of her application for substituted service;
(b)Mr Stone, one of the witnesses to the signing of the will by the deceased;
(c)Mr Claypole, a neighbour who deposed to Mr Naysmith’s happy relationship with the applicant and their intention to marry;
(d)A second affidavit by Mr Stone deposing to the de-facto relationship between the applicant and Mr Naysmith;
(e)An updating affidavit sworn by Ms Khophimai deposing to the circumstances by which her signature appeared on copies of the will;2
(f)Patricia James, the senior document examiner for New Zealand Police swore an affidavit to which she exhibited her evaluation of the report prepared for the respondents by Mr Mike Maran.
[11] Apart from Ms Khophimai’s first affidavit which is almost three and a half pages in length, all affidavits are between one and two pages long and consist of simple, factual statements.
2 The will had been exhibited to an earlier affidavit which Ms Khophimai had signed and initialled on each page.
[12] The complex evidence was contained in a report by Ms James, the police examiner, but that was not prepared for Ms Khophimai. Ms James prepared her report for internal purpose. That is, Ms James undertook an examination of the handwriting in the testamentary section of the will to assist investigating officers in their decision whether or not to commence a prosecution. The report was not prepared for the purposes of this litigation. The affidavit which Ms James did swear for the purpose of the litigation was a simple 10-paragraph statement providing details of her position, her qualifications, the specialist testimony she had given previously, and the quality assurance programme under which the New Zealand Police Document Examination Section operates. Mr Maran’s report was appended as was Ms James’ own evaluation of Mr Maran’s report. Also exhibited to Ms James’ affidavit was email correspondence with Ms Tope pursuant to which she had requested a copy of the police report under the Privacy Act and Official Information Act.
[13] In my view Band A costs are appropriate for the preparation of the applicant’s affidavits. There is nothing in the respondents’ point that some of the affidavits were in reply and unnecessarily so. Williams J directed the applicant to file affidavits in reply on 3 July 2017.
[14] The application for substituted service was declined by Simon France J. Accordingly, costs on that application are not recoverable.
[15] I agree with the respondents that costs are not payable on the interlocutory application for security for costs. That application was declined by Simon France J on 19 October 2017. Accordingly, the claimed costs should be further reduced by
$5129.
[16] Finally, I come to disbursements. Mr Hughes correctly notes that there was no express order in my judgment that the respondents pay the applicant’s disbursements. That does not mean, however, the respondents are not liable to pay properly incurred disbursements. A disbursement, if claimed and verified, must be included in the costs awarded for a proceeding to the extent that it is approved by the Court, specific to the conduct of the proceeding, reasonably necessary for the conduct of the proceeding and
reasonable in amount.3 I consider all the disbursements claimed in the schedule above at [5] are properly claimed except for the $200 filing fee for the unsuccessful interlocutory application for security for costs.
Result
[17] With the exception of the filing fee for the security for costs application, the applicant is entitled to the disbursements claimed as set out above at [5].
[18]The applicant is entitled to scale costs as follows:
Step 37 Filing originating application for validation of will and supporting
affidavits
2 $4,460 Step 30 Preparation of affidavits 1.5
(Band A)
$3345 Step 10 Preparation for first case management conference 0.4 $892 Step 3 Reply 0.8 $1,784 Step 13 Appearance at first case management conference 0.3 $669 Step 11 Filing memorandum for case management conference
(scheduled 28 August 2017)
0.4 $892 Step 13 Appearance at case management conference 28 August 2017 0.3 $669 Step 33 Preparation for hearing 3 $6,690 Step 40 Preparation of written submissions 1.5 $3,345 Step 41 Preparation by applicant of bundle
for hearing
0.6 $1,338 Step 34 Appearance at hearing for principal counsel 1 $2,230 Total $26,314
Karen Clark J
Solicitors:
Tope Law Ltd, Hastings for Applicant Anthony Harper, Auckland for Respondents
3 High Court Rules 2016, r 14.12.2.
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