Kinney v Pardington

Case [2021] NZCA 174


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)

  1. 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.  

  2. 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

  1. 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. 

  2. Unbeknown to the Pardingtons, the deceased had fathered a third child, Ms Kinney, who was born in July 1990 (after the will was…

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Details
AGLC
Kinney v Pardington [2021] NZCA 174
Case
[2021] NZCA 174
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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