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…

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 Le Couteur v Norris

Details

AGLC: Le Couteur v Norris [2019] NZHC 2075
Case: [2019] NZHC 2075
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Juliet le Couteur sought costs against her brothers Howard and Stephen le Couteur following a claim under the Law Reform (Testamentary Promises) Act 1949. The Court of Appeal had previously allowed Juliet's appeal and awarded her $590,000 from her mother's estate. The legal issues before the Court were whether the refusal of a settlement offer and mediation, as well as the absence of particulars of services claimed, should affect the award of costs. Juliet argued that her refusal to accept a settlement offer and participate in mediation was justified, and the Court of Appeal had already found that her claim had sufficient detail. The Court considered that while it could take into account the settlement offers and mediation refusal, this was not warranted in this case. The Calderbank offer made by Howard and Stephen did not specify a monetary figure and did not reflect what Juliet obtained on the Court of Appeal judgment. The Court also found that Juliet's refusal to mediate was not unreasonable in the circumstances.

The Court concluded that the usual rule, that the defeated party pay costs where a defence is unsuccessful, should apply. However, given that Juliet's success in the Court of Appeal did not fully reflect her alternative prayers for relief, the costs award should be reduced by 50 per cent. The final order was that Howard and Stephen were to pay Juliet costs in the sum of $22,634.50 together with disbursements of $5,190, a total of $27,824.50.

Orders