Le Comte v Le Comte - [2024] NZHC 1805

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…

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.

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Details

Case: [2024] NZHC 1805
Decision Date: 4 July 2024

CaseChat Overview and Summary

The case of Le Comte v Le Comte involves an application by the plaintiff, Janice Diane Le Comte, against the defendant, John Stewart Le Comte, regarding the deceased estate of Kenneth Newton Le Comte. Janice sought orders to appoint a new trustee, review the actions of the existing trustee, and a claim for maintenance and support. The legal issues before the court involved whether the plaintiff’s discontinuance of her proceeding justified increased costs on a 2B basis, uplifted by 50 percent, as sought by John. Alternatively, John sought standard 2B scale costs. The court also needed to consider whether the plaintiff’s health issues justified any deviation from the general principles regarding costs.

The court considered the principles governing costs in the High Court Rules 2016 and the general principles for determining costs. It noted that the discontinuance of a proceeding does not affect the determination of costs, and the plaintiff, as the discontinuing party, generally bears the defendant's costs unless otherwise agreed or ordered by the court. The court found that increased costs could only be awarded if the plaintiff’s refusal to accept settlement offers was unreasonable. Given the absence of a definitive judgment and the plaintiff’s health issues, the court concluded that the plaintiff's discontinuance did not equate to judgment for the defendant. Therefore, the court did not award increased costs. However, the court found that the plaintiff should bear the defendant’s standard 2B scale costs, less the cost of preparing costs submissions, resulting in an award of $7,170 plus disbursements of $110.

In summary, the court ordered that Janice Le Comte pay John Le Comte $7,280 in costs and disbursements. The court found that the plaintiff’s discontinuance did not warrant increased costs, and her health issues did not justify deviating from the general principles for determining costs.

Orders