Kinney v Pardington

[2015] NZHC 1905

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2013-443-058 [2014] NZHC 1905

UNDER	The Family Protection Act 1955
IN THE MATTER	of the Estate of KENNETH JOHN PARDINGTON
BETWEEN	ERIN MAUREEN KINNEY Plaintiff
AND	MARGARET MYRTLE PARDINGTON, DAVID JOHN PARDINGTON and KENNETH MARK PARDINGTON Defendants
AND	DAVID JOHN PARDINGTON and KENNETH MARK PARDINGTON Interested Parties

On the Papers
Appearances:	S Herbert for Plaintiff K McKenzie for Defendant S Hughes QC for Interested Parties
Judgment:	12 August 2015

JUDGMENT (NO. 2) OF TOOGOOD J [COSTS]

This judgment was delivered by me on 12 August 2015 at 2:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

KINNEY v PARDINGTON [2014] NZHC 1905 [12 August 2015]

[1]      On 26 February 2014, I delivered a judgment on preliminary questions of law posed by Associate Judge Abbott in a Minute dated 8 October 2013.1

[2]      As the judgment discloses, the result of the hearing on 24 February 2014 was that  counsel  agreed  on  the  answers  to  the  questions  posed.    They also  agreed, however, that the answers did not materially advance resolution of the real issues between the parties because the case as pleaded addresses only some of them.2

[3]      The plaintiff was given time to file and serve “any amended statement of claim she may wish to file, including the addition of any further causes of action against the defendants as executors and trustees of the Estate.”3

[4]      The  plaintiff  did  not  file and  serve  an  amended  statement  of  claim  but, instead, applied for an order for particular discovery before issuing proceedings. That application was declined by Associate Judge Sargisson on 17 April 2015,4  on the ground that the claim the plaintiff is entitled to make could be formulated without pre-commencement discovery.

[5]      The  26  February  2014  judgment  on  the  preliminary  questions  set  out  a summary of what appeared to be the real issues dividing the parties, in the hope that such a summary might assist the plaintiff to determine how her proposed claim could be reformulated to address those issues.  The plaintiff has not taken advantage of that opportunity.

[6]      The costs memorandum filed by Mr Herbert on behalf of the plaintiff focuses on explaining why he made concessions in the course of the hearing of the preliminary  questions.    Counsel  resubmits  that  the  preliminary  questions  were decided in favour of the plaintiff.

[7]      The defendants and the interested parties argue that, having regard to the way in which the preliminary questions were resolved, no party can be said to have failed

1      Kinney v Pardington [2014] NZHC 289.

2 At [3].

3      At [5](a).

4      Kinney v Pardington [2015] NZHC 725.

or succeeded on the matter in terms of r 14.2(a) of the High Court Rules, which asserts  the  general  principle  that  a  “party  who  fails  with  respect  to  …  an interlocutory application should pay costs to the party who succeeds”.

[8]      Costs are at the discretion of the Court.5   I am not persuaded by Mr Herbert’s explanation of the position taken by the plaintiff at the hearing to find that the preliminary questions were decided in the plaintiff’s favour.  They were not.  The effect of the judgment was to conclude that the answers to the questions posed by the Associate  Judge  were  obvious  and  agreed  by  counsel,  and  that  the  plaintiff’s proposed pleading would not be adequate to address such proper claims as she may have.   The answers did not advance the plaintiff’s case and she cannot be said to have succeeded in anything other than being given an opportunity to re-cast her case. That was an indulgence.

[9]      In the circumstances, I agree with Ms Hughes QC and Ms McKenzie that costs should lie where they fall.  I direct that the parties shall meet their own costs.

[10]     In the course of his costs submissions, Mr Herbert asserted that applications dated 2 October 2013 for discovery and for “inventory and account” have yet to be determined.  This proceeding has occupied a substantial amount of the time of the Court, and the defendants have been put to considerable expense without the plaintiff’s claims having been advanced in any practical way.  It is in the interests of the parties and the administration of justice that, if the plaintiff wishes to pursue a claim against any defendant, she should do so without further delay.

[11]     I direct that the proceeding shall be set down for a telephone conference before an Associate Judge at the earliest available date, so that timetable orders can be made for the effective disposition of the proceeding.

………………………………

Toogood J

5      High Court Rules, r 14.1(1).