Kinney v Pardington - [2019] NZHC 2196

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2013-443-058

[2019] NZHC 2196

UNDER the Family Protection Act 1955

IN THE MATTER

of the estate of KENNETH JOHN PARDINGTON (deceased)

BETWEEN

ERIN MAUREEN KINNEY

Plaintiff

AND

MARGARET MYRTLE PARDINGTON DAVID JOHN PARDINGTON

KENNETH MARK PARDINGTON
Defendants

AND

DAVID JOHN PARDINGTON KENNETH MARK PARDINGTON

Interested Parties

Hearing:
15 and 16 August 2016

5 February 2018 (Discovery and Consolidation hearing) 27 August 2018 (Valuation hearing)

4 December 2018 (Final submissions hearing)
11 June 2019 (Costs submissions received)

Appearances:

C T Gudsell QC and D E G Nielsen for Plaintiff K A McKenzie for Defendants

S W Hughes QC for Interested Parties

Judgment:

3 September 2019

JUDGMENT OF CULL J

[1] In his will, the deceased left a life interest to his wife of his half-share in the family home, as well as the income from his residuary estate. On her death, the deceased’s residuary estate is to be divided equally between his children. The

KINNEY v PARDINGTON [2019] NZHC 2196 [3 September 2019]

deceased has two children by his marriage, and one child, Ms Kinney, who was unknown to the rest of the family. Ms Kinney has successfully claimed under the Family Protection Act 1955 and she was awarded 70 per cent of the net value of the estate, assessed at $615,000 less the costs of the estate administration.1

[2] The parties have now filed memoranda addressing party costs in light of the above finding, and the amount of administration costs to be deducted from the net value of the estate. I deal first with Ms Kinney’s costs, then the administration cost deduction.

Party costs

[3] Mr Gudsell QC for Ms Kinney submits that costs should follow the event. That is, costs should be awarded to Ms Kinney, who has succeeded in her claim. Mr Gudsell submits Ms Kinney’s costs should be met by Ms Margaret Myrtle Pardington, Mr David Pardington and Mr Kenneth Pardington (the Pardingtons) in their personal capacities. He submits the award should be scale costs on a schedule 3C basis (which would be $184,072.50), together with disbursements ($65,459.56), totalling
$249,532.06. Alternatively, Ms Kinney should be awarded increased costs on a 2B basis.

[4] Ms Susan Hughes QC for the Pardingtons submits that costs should lie where they fall. Ms Kinney did not “win” the proceeding. From the outset, the Pardingtons accepted that Ms Kinney had a valid claim. The issues have been the extent of the estate and the amount of it necessary to compensate Ms Kinney for the deceased’s breach. She submits there is no evidence of unprincipled or unreasonable behaviour of the Pardingtons. In contrast, Ms Kinney brought a number of interlocutory applications which were unreasonable, unjustified and unsuccessful. In the event that the Court considers that Ms Kinney is entitled to costs, Ms Hughes submits the Pardingtons are entitled to an offset caused by a series of interlocutory applications which have improperly extended this proceeding.

1

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 [2019] NZHC 2196
Case: [2019] NZHC 2196
Decision Date: 3 September 2019

CaseChat Overview and Summary

Kinney v Pardington [2019] NZHC 2196 involved a claim under the Family Protection Act 1955 by Ms Erin Maureen Kinney, who was unknown to the rest of the family, against the estate of her father, Kenneth John Pardington, deceased. The case focused on determining the costs associated with the proceedings and the administration costs to be deducted from the net value of the estate. The High Court of New Zealand, New Plymouth Registry, presided over the case, with Judge Cull delivering the judgment on 3 September 2019.

The court first addressed the issue of party costs, determining whether Ms Kinney was entitled to costs and, if so, on what basis and who should bear them. The court found that Ms Kinney was entitled to costs as she had succeeded in her claim, despite the final award being a compromise. The court awarded costs on a schedule 2B basis, considering the overall conduct of the parties and the complexity of the case. The court also directed the parties to address specific issues regarding the calculation of 2B costs.

Regarding the administration costs, the court considered whether they should be borne by the estate or the Pardingtons personally. The court concluded that the majority of the administration costs should come out of the estate as they were properly incurred. However, the court found that the executors' stance towards disclosure of the Trust's records was unreasonable, and as a result, 20 per cent of the executors' costs post-August 2016 should not be paid out of the estate but by the executors personally.

In conclusion, the court ordered that Ms Kinney's 2B costs be paid by the estate, and the administration's costs be paid by the estate, with the exception of $9,580.00 to be paid by the executors in their personal capacity. The defendants and interested parties were given the opportunity to be heard on the 2B costs claim by the plaintiff.

Orders