Le Comte v Le Comte
[2024] NZHC 1805
•4 July 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-356
[2024] NZHC 1805
UNDER Parts 5 and 7 of the Trusts Act 2019, the Family Protection Act 1955 and Part 18 of the High Court Rules 2016 IN THE MATTER
of the deceased estate of Kenneth Newton Le Comte and an application to appoint a new
trustee, review the acts and decisions of the existing trustee, and a claim for maintenance and support
BETWEEN
JANICE DIANE LE COMTE
Plaintiff
AND
JOHN STEWART LE COMTE
Defendant
Hearing: On the papers Counsel:
Self-represented plaintiff C Matsis for the defendant
Judgment:
4 July 2024
JUDGMENT OF GORDON J
[As to costs]
This judgment was delivered by me on 4 July 2024 at 3 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Gault Mitchell Law, Wellington Copy to: J Le Comte
LE COMTE v LE COMTE [2024] NZHC 1805 [4 July 2024]
Introduction
[1] This is an application for costs by the defendant, John Le Comte, after the plaintiff, Janice Le Comte discontinued the proceeding. John1 seeks increased costs calculated on a 2B basis uplifted by 50 per cent. The sum sought is $12,189 plus disbursements of $110 (a court filing fee).
[2] In the alternative, John seeks 2B scale costs in the sum of $8,126 together with disbursements of $110.
[3] Mrs Le Comte opposes the application. She has filed a memorandum herself as she says she cannot afford to instruct a lawyer for this step.
Background
[4] Mrs Le Comte is the wife of Ken Le Comte (deceased). John is Ken’s eldest son by a prior marriage. He is the administrator of Ken’s deceased estate pursuant to the Court order granting probate on 18 June 2018.
[5] Under Ken’s will made on 10 November 2010 Mrs Le Comte received a life interest in Ken’s residential property in Porirua (the property). The property was the joint family home until Ken’s death in April 2018 but had been defined as Ken’s separate property under a contracting out agreement.2
[6] Mrs Le Comte’s claim, filed on 6 July 2021, alleged that Ken had refused to pay for essential maintenance for the repair of the property prior to his death which left Mrs Le Comte in a home that was in part uninhabitable. Mrs Le Comte claimed Ken breached his moral duty by failing to provide a fund for the essential maintenance of the property.
1 I will refer to John Le Comte and his father Kenneth Le Comte by their first names given the common surname. I will use the abbreviated version “Ken” rather than “Kenneth” for Mr Le Comte Snr as that is the name the parties use. No disrespect is intended by the use of first names.
2 Pursuant to s 21 of the Property (Relationships) Act 1976 and executed on 28 June 1999.
[7] The claim also took issue with certain acts and decisions by John as administrator of his father’s estate.
[8] Mrs Le Comte sought: an order under s 127 of the Trusts Act 2019 in relation to certain acts and decisions of John as an administrator; an order under s 114 of the Trusts Act removing John as a trustee of her life interest and substituting the Public Trust; an order under s 9(1) of the Family Proceedings Act 19553 extending the time period for the making of her application for maintenance and support; and an order under ss 4(1) and 5(2) of the Family Proceedings Act 19554 granting her a lump sum of $62,363.98 from Ken’s deceased estate to pay for the essential maintenance and repair of the property.
[9] John filed a statement of defence dated 13 September 2021 opposing the claim. He also raised an affirmative defence of limitation under s 9 of the Family Protection Act pleading that any application in respect of Ken’s estate had to be brought by 17 June 2019 and accordingly Mrs Le Comte’s claim was statute-barred unless the Court extended the time period to bring the proceedings. He further pleaded that the Court should not agree to any such extension as almost all assets other than the property had been finally distributed and the residual beneficiary would be unfairly prejudiced.
[10] Mrs Le Comte filed a reply to the affirmative defence dated 27 September 2021 admitting that the claim was statute-barred unless the Court extended the time. She did not accept that the Court should not agree to an extension.
[11] The matter progressed reasonably promptly to a judicial settlement conference in February 2022. Unfortunately the parties were unable to reach agreement. The matter has moved extremely slowly since then.
[12] On 4 June 2024 Mrs Le Comte filed a notice of discontinuance. The notice recorded that there was no agreement as to costs.
3 The Statement of Claim pleads the Family Proceedings Act 1955. That appears to be an error. It seems that it should be the Family Protection Act 1955.
4 Similarly, as per n 3 above.
Costs principles
[13] Rule 15.21(2) of the High Court Rules 2016 (HCR) provides that the discontinuance of a proceeding does not affect the determination of costs.
[14] Rule 15.23 provides that unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.
[15] In terms of the general discretion as to costs, the starting point for the assessment of costs is that all matters with regard to costs are at the discretion of the Court.5 This discretion can override the general principles relating to discontinuance. However, this discretion is not an unfettered one and is to be guided by the general principles in rr 14.2 to 14.5. A fundamental costs principle is set out in r 14.2(1), which provides that the party who failed with respect to a proceeding should generally pay the costs of the successful party. The rules are intended to create a framework for determining costs in individual cases that is both “predictable and expeditious”.6
[16] Ultimately, the overriding consideration when exercising a discretion to award costs is that any award ought to do justice between the parties.7
[17] I also note that in a costs application the Court does not consider any acts or omissions prior to the commencement of a proceeding. In that case the relevant date is 6 July 2021 when the statement of claim was filed.
Increased costs
[18] John seeks increased costs on the basis that Mrs Le Comte unreasonably refused to accept three settlement offers. The first was on 12 October 2021 when John offered to settle by way of buying out Mrs Le Comte’s life interest for $55,135 and
5 High Court Rules 2016, r 14.1.
6 Rule 14.2(g).
7 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].
allowing her to take ownership of a vehicle and the furniture in the property. Costs would lie where they fall.
[19] John made a second offer on 4 July 2022 to settle on the basis that Mrs Le Comte discontinue and that costs would lie where they fall.
[20] A third offer was made on 22 November 2023 on the basis that Mrs Le Comte would take ownership of the vehicle and all chattels and tools and would accept a one-off contribution of $5,000 towards Ken’s funeral costs. Costs would lie where they fall.
[21] Mr Matsis, counsel for John, says the third offer was accepted in principle by Mrs Le Comte. John signed a settlement agreement which Mr Matsis says reflected the agreed terms but then Mrs Le Comte refused to sign.
[22] Mr Matsis submits that each of the three offers was reasonable. He accepts that it is not easy to make a direct comparison with the first offer but he says in respect of the second and third offers Mrs Le Comte would have been better off accepting those offers than rejecting them and discontinuing in the way that she has now done.
[23] Mr Matsis further submits that John’s position on the settlement options appropriately reflected the limitation issues which Mrs Le Comte faced.
[24] In response Mrs Le Comte says in relation to the first offer that she did not accept it because she needed and continues to need somewhere to live and the property had been her home for 25 years. She says the offered payment of $55,000 was completely unrealistic. In relation to the vehicle she says it had always been legally hers in accordance with Ken’s wishes and the fact that she came to the relationship with a vehicle. The vehicle had been in joint ownership and that only changed due to an amendment to the administration rule in LTNZ (now NZ Transport Agency Waka Kotahi). She says as regards the furniture, much of it is hers.
[25] In terms of the second offer, Mrs Le Comte says this was not an option she could accept at the time because she was still wanting the Court to intervene and assist her.
[26] By the time of the third offer, Mrs Le Comte says her health had begun to worsen quite badly and she accepted the offer in principle because she realised it would be impossible for her to participate in a court hearing. But she says it was John’s lawyer who drafted the settlement agreement and she did not have any input into it. She says she refused to sign it when it was presented to her because she was being asked to sign it as a “settlement” for items being given to her that John was legally obliged to give to her anyway. She says for example the estate should have paid the funeral costs and the car should never have been transferred to Ken’s legal ownership.
[27] The Court may award increased costs under r 14.6(3)(b)(v) if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under r 14.10 (written offer without prejudice except as to costs) or some other offer to settle or dispose of the proceeding.
[28] The Court of Appeal in Holdfast held that a defendant seeking increased costs against a plaintiff who had rejected a settlement proposal before filing a notice of discontinuance: 8
… will need to establish clearly that the failure was unreasonable. More evidence than normal is required because the court does not have a definitive judgment against which to contrast the settlement offer. A court cannot assume that a discontinuance is akin to judgment for the defendant ...
[29] That is the position the Court is in, in this case. In the absence of a definitive judgment which the Court can apply in contrast to the settlement offers, I am not in a position to assume that discontinuance is akin to judgment. I take that view, notwithstanding the limitation issue which Mr Matsis raises. Although Mrs Le Comte accepted the claim under the Family Protection Act was statute-barred, the Court still
8 Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [29].
has the ability to extend the time period for bringing the proceeding. It is clear from her pleading in reply that she intended to advance such an argument.
[30] Accordingly, in the absence of a definitive judgment, I do not make an order for increased costs.
Scale costs
[31] Mrs Le Comte says she has discontinued the proceeding because of her health. She is now aged 80 years and is having increased age-related illnesses. She says she did not expect the proceedings to take this long to resolve; nor did she expect her health to deteriorate in the way it has; nor did she anticipate the levels of stress and extreme anxiety that have resulted in the proceeding being too much for her now physically, emotionally and psychologically.
[32] She says in June 2023 she experienced quite a sudden deterioration in her general health, wellbeing and levels of mobility. Those conditions have collectively caused her multiple effects. She says that while waiting from February 2022 to May 2023 for court proceedings to begin, she did not know that her health would deteriorate substantially overnight in June 2023. She describes that deterioration in some detail and also medication she is required to take.
[33] The Court acknowledges Mrs Le Comte’s health issues but in the end, although a costs decision is a discretionary decision, as I have already said, the discretion is not an unfettered one and is guided by the general principles in the HCR governing costs.
[34] The items John claims are standard scale items: commencement of defence (item 2); preparation for first case management conference (item 10); filing of memorandum for first or subsequent case management conference (item 11); appearance at mentions hearing (item 12); and preparation of costs submissions (item 36).
[35] Unfortunately for Mrs Le Comte I do not consider that any of the matters she raises are factors the Court is able to take into account in considering whether the
presumption in r 15.23 is displaced. Accordingly, I consider I am required to order that Mrs Le Comte pay John’s costs up to and including the discontinuance.
[36] However, the principle in r 15.23 does not include a provision for the preparation of costs submissions. Although, under the general costs provisions the Court commonly makes an order that includes the cost of preparing costs submissions, given they do not form part of r 15.23, I will exclude the claim for $956, being the sum sought for preparation of costs submissions.
Result
[37] I award costs against the plaintiff Janice Le Comte in favour of the defendant John Le Comte in the sum of $7,170 (being $8,126 minus $956) together with disbursements of $110. The total sum awarded is accordingly $7,280.
Gordon J
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