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Kinney v Pardington

Kinney v Pardington

Case [2021] NZCA 174 12 May 2021

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA100/2020
[2021] NZCA 174

BETWEEN	ERIN MAUREEN KINNEY Appellant
AND	MARGARET MYRTLE PARDINGTON, DAVID JOHN PARDINGTON AND KENNETH MARK PARDINGTON AS EXECUTORS AND TRUSTEES OF THE ESTATE OF KENNETH JOHN PARDINGTON First Respondents
AND	DAVID JOHN PARDINGTON AND KENNETH MARK PARDINGTON Second Respondents

Hearing:	16 February 2021
Court:	Gilbert, Thomas and Edwards JJ
Counsel:	C T Gudsell QC for Appellant No appearance for First Respondents S W Hughes QC for Second Respondents
Judgment:	12 May 2021 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay costs to the second respondents for a standard appeal on a band A basis and usual disbursements.
CThe second respondents must pay costs to the appellant on their abandoned cross-appeal for all steps up to the date of abandonment as for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Questions of costs are ultimately a matter of discretion. The exercise often requires assessment of a wide range of factors. The overall objective is to achieve an outcome that best meets the interests of justice in the given case in accordance with any applicable costs rules and consistent with established principles. The trial judge is uniquely placed to make this assessment.[1] It is well-settled that an appellate court should not interfere with a costs award unless satisfied that the judge acted on a wrong principle, failed to take account of some relevant matter, factored in the irrelevant or was plainly wrong.[2] This is why appeals against costs awards seldom succeed.
[1]Tower Insurance Ltd v Kilduff [2019] NZCA 82 at [19].
[2]Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [15].
Erin Kinney appeals against a costs judgment made in her favour following her successful claim in the High Court under the Family Protection Act 1955.[3] Ms Kinney contends the Judge ought to have required the respondents (collectively referred to as the Pardingtons) to meet the costs award personally instead of directing that the costs be paid out of the estate. She argues that the Judge overlooked five relevant considerations and factored in one irrelevant consideration in reaching this erroneous conclusion. In order to comprehend the criticisms, it is necessary to commence by briefly summarising the background.

Background

[3]Kinney v Pardington [2019] NZHC 2196 [Costs judgment].

Kenneth Pardington Snr (the deceased) died nearly 10 years ago, on 1 September 2011. In his last will executed in 1989, he left a life interest in his estate to his widow, Myrtle Pardington, and upon her death to his children in equal shares. Mrs Pardington and her two adult sons, David and Kenneth, are the executors of the estate and they obtained probate in September 2011.
Unbeknown to the Pardingtons, the deceased had fathered a third child, Ms Kinney, who was born in July 1990 (after the will was…

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 Kinney v Pardington

Details

AGLC: Kinney v Pardington [2021] NZCA 174
Case: [2021] NZCA 174
Decision Date: 12 May 2021 at 11.30 am

CaseChat Overview and Summary

Kinney appealed against the Judge's costs award which required the Pardingtons to pay her costs out of the estate rather than personally. The appeal was dismissed. Kinney argued that the Judge had failed to take into account relevant considerations and had factored in an irrelevant consideration in reaching her conclusion. These considerations included the Pardingtons' conduct, the impact on Kinney's share of the estate, settlement offers, and relevant legal principles. The Court was satisfied that the Judge had considered these factors and that there was no error in her conclusion that it was fairest for Kinney's costs to be paid out of the estate. The appeal was dismissed with the appellant to pay costs to the second respondents on a standard appeal basis and the second respondents to pay costs to the appellant on their abandoned cross-appeal.

Orders