Le Couteur v Norris

[2019] NZHC 2075

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3234

[2019] NZHC 2075

UNDER

The Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

The estate of Sidney Howard le Couteur

BETWEEN

J LE COUTEUR

Plaintiff

AND

AND

R N T NORRIS AND R G WILSON

Defendants

H F J LE COUTEUR AND S C LE COUTEUR

Interested Parties

On the Papers:	at Auckland
Judgment:	23 August 2019

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 23 August 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Martelli McKegg & Cormack, Auckland Jackson Russell, Auckland

Cavell Leitch, Christchurch

J LE COUTEUR v NORRIS & ORS [2019] NZHC 2075 [23 August 2019]

[1]                 On 23 May 2018, I dismissed a claim by Juliet le Couteur (“Juliet”) under the Law Reform (Testamentary Promises) Act 1949 (“the Act”).1

[2]                 Juliet appealed. In its judgment dated 11 December 2018, the Court of Appeal allowed Juliet’s appeal. It set aside the judgment of the High Court and awarded Juliet

$590,000 from her mother’s estate pursuant to s 3 of the Act. Costs were fixed in the Court of Appeal, with directions that costs in the High Court were to be determined in the High Court.2

The position of the parties

[3]                 Juliet seeks costs on a 2B basis in the sum of $45,269.00, together with disbursements of $5,190.00, a total of $50,459.00, against the interested parties, her brothers Howard and Stephen le Couteur (“Howard and Stephen”).

[4]                 Howard and Stephen do not take issue with Juliet’s calculation, but oppose any award of costs, submitting that costs should lie where they fall. Howard and Stephen submit that:

(a)notwithstanding the Court of Appeal judgment in Juliet’s favour, both parties have in fact enjoyed a measure of success; Juliet in obtaining an additional $590,000 and Howard and Stephen from opposing the transfer of 17B Taurarua Terrace (the “Taurarua Terrace property”) to Juliet; and

(b)no costs should otherwise be payable given the complexity of the proceedings, the Calderbank offers made in the course of proceedings, and the refusal of Juliet to engage in mediation.

[5]                 In response, Juliet reiterated her application for costs and submitted that she was substantively successful in that she obtained one of the alternative orders sought, and that both sides attempted to resolve matters without recourse to a hearing and that

1      Le Couteur v Norris [2018] NZHC 1074 [High Court judgment].

2      Le Couteur v Norris [2018] NZCA 572 at [77]-[81] [Court of Appeal judgment].

it was not unreasonable for her to reject the Calderbank offer made by Howard and Stephen.

Discussion

[6]                 Having considered the submissions made by the parties, I am satisfied that no adjustment for costs sought by Juliet should be made in respect of the settlement offers and/or any refusal to mediate, or any perceived defect in the particular formulation of Juliet’s claim.

[7]                 While there can be no dispute that this Court can take such matters into account as a discretionary matter,3 such an approach is not warranted in this case. Although Howard and Stephen submit that they made reasonable settlement offers, including a Calderbank offer, it is by no means clear that any of those offers reflect what Juliet has obtained on the Court of Appeal judgment. In part, this is because the Calderbank offer in particular did not specify a monetary figure, and more significantly because the size of the estate at issue is still in dispute. Even on counsel for Howard and Stephen’s own (somewhat speculative) figures however there is a difference of around

$180,000 between the Calderbank offer and the award made by the Court  of  Appeal. As, on those figures at least, accepting the Calderbank offer would have put Juliet in a worse position than obtaining the judgment it does not therefore appear to be unreasonable for her to have rejected the offer.

[8]                 Similarly, Juliet’s counter offer dated 22 March 2017, rejected by Howard and Stephen, identifies a difference in value between the offer and the outcome under the Court of Appeal judgment. As a result, I am satisfied the rejection by Howard and Steven was justified and no adjustment to costs is warranted.

[9]                 I am likewise satisfied that Juliet’s refusal to mediate was not unreasonable in the circumstances. Correspondence indicates that both parties desired a negotiated settlement. Although this did not eventuate, and Juliet declined an invitation to engage in mediation, this was not unreasonable in the circumstances. The reasons why a party might reasonably decline an invitation to engage in pre-trial alternative dispute

3      High Court Rules 2016, r 14.11(1).

resolution are infinitely various and not necessarily related to an unreasonable attitude on the part of the litigant. 4

[10]              The interested parties submit that there should be a refusal of an order of costs due to Juliet’s failure to respond to the request for further particulars of services claimed, as set out in correspondence dated 27 March 2017. However, the Court of Appeal found that there was sufficient detail of the services provided.5

[11]              More broadly, I consider the usual rule, that the defeated party pay costs where a defence is unsuccessful, should apply,6 and note that I had in fact awarded costs against Juliet on the High Court judgment when her claim was dismissed.7 However, the costs award must take into account that even allowing for her success in the Court of Appeal which did reflect one of her alternative prayers for relief, the judgment awarded fell well below what Juliet was claiming, the transfer of the Taurarua Terrace property. The circumstances with regard to the acquisition of this property formed a significant part of the hearing, and the valuation evidence before the Court was that this property was worth $1,250,000.00. The final award from the Court of Appeal was therefore less than 50 per cent of what was sought. In those circumstances, a simple award of costs on a 2B basis is not appropriate. Instead, I conclude the costs award should be reduced by 50 per cent to reflect this reality, with the disbursements remaining as sought by Juliet.

Decision

[12]              Howard and Stephen are to pay Juliet costs in the sum of $22,634.50 together with disbursements of $5,190, a total of $27,824.50.

Powell J

4      Body Corporate 198900 Ltd v Bhana Investments Ltd [2015] NZHC 2787 at [10].

5 Court of Appeal judgment, above n 2, at [37].

6      High Court Rules 2016, r 14.2(1)(a).

7 High Court judgment, above n 1, at [57].