LYNETTE JOCELYN GIBSON AND SIMON REDDING MAKGILL in his capacity as Executor and Trustee of The Estate of Lewis Henry Wait ROBERT ERNEST WAIT, WENDY THERESE WAIT and GAYLENE ANNE CHRISTIE WAIT Adult Interested Parties

[2024] NZHC 3203

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2022-419-256

[2024] NZHC 3203

BETWEEN

LYNETTE JOCELYN GIBSON

Applicant

AND

SIMON REDDING MAKGILL in his

capacity as Executor and Trustee of The Estate of Lewis Henry Wait Respondent

ROBERT ERNEST WAIT, WENDY

THERESE WAIT and GAYLENE ANNE CHRISTIE WAIT

Adult Interested Parties

On the papers

Counsel:

E Telle for the applicant

S Moore for the interested parties R E Wait and W T Wait

Judgment:

31 October 2024

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 31 October 2024 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

GIBSON v MAKGILL [2024] NZHC 3203 [31 October 2024]

[1]                 In a judgment dated 12 April 2024, I declined  the originating application    by Lynette Gibson for leave to extend the time for her to make a claim against her late father’s estate under the Family Protection Act 1955 (the FPA).1

[2]                 Lynette’s application was actively opposed only by two of the adult interested parties, Robert and Wendy Wait. Robert and Wendy seek costs from Lynette, either on an indemnity basis or on a 2C basis. Lynette says costs should be awarded only on a 2B basis, and not for all the steps claimed by Robert and Wendy.2

Should indemnity costs be awarded?

[3]Robert and Wendy seek costs on an indemnity basis in the sum of $78,888.17.

[4]                 Mr Moore, counsel for Robert and Wendy, filed a lengthy memorandum on costs. He submitted that an award of indemnity costs is justified on the basis that Lynette’s claim lacked merit and that she acted unreasonably and/or improperly by using the proceeding to attack Robert’s conduct or character.

[5]                 A court may order a party to pay indemnity costs in the circumstances set out in r 14.6(4) of the High Court Rules 2016. Mr Moore did not make clear which limb of r 14.6(4) was relied on. I infer it is r 14.6(4)(a): that Lynette acted vexatiously, frivolously, improperly, or unnecessarily in commencing or continuing her application.

[6]                 Rule 14.6(4)(a) sets a high threshold. A mere lack of merit in a claim does not justify  an  award  of  indemnity  costs.  The  relevant  threshold  is  the  pursuit  of   a “hopeless case”.3 Lynette’s application was not hopeless. As to the alleged attack on Robert’s conduct or character, while I consider that much of the affidavit material filed by Lynette was ultimately irrelevant to the determination of her application, it was not a case where that material was plainly irrelevant and I do not consider that

1      Gibson v Makgill [2024] NZHC 781.

2      As I did in my substantive judgment, it is convenient to refer to the parties by their first names.

3      Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 348, (2014) 22 PRNZ 322 at [27].

Lynette was acting with any ulterior motive or otherwise acting improperly in adducing it.

Which time band should apply?

[7]                 The parties appear agreed that cost category 2 is appropriate. They disagree about whether the reasonable time for the relevant steps in Sch 3 should be assessed by reference to band B or C.

[8]                 The parties approached the band dispute on a blanket basis. That is inappropriate. The time bands may differ at each step. I will assess the appropriate band by reference to each of the steps that Robert and Wendy can claim. That is the matter to which I next turn.

For which steps can Robert and Wendy claim costs?

[9]                 The parties agree that Robert and Wendy can claim costs for filing various memoranda and for appearance at a mentions  hearing.  They otherwise disagree as to which of the steps in Sch 3 apply:

(a)Mr Moore, while acknowledging that the proceeding was an originating application, submitted that the breadth of the affidavit evidence and extraordinary amount of documentary evidence meant it was appropriate that “an analogy is drawn with that of an affidavit hearing”. Accordingly, claims were made for steps 30, 32 and 34 (which apply in Sch 3 to an “affidavit hearing”). A claim was also made, inexplicably, for step 33A (which applies in Sch 3 to a “witness hearing”).

(b)Mr Telle, counsel for Lynette, submitted that the proceeding was akin to an interlocutory application. He said that the relevant steps in Sch 3 were those appearing under the heading “Interlocutory applications”, namely steps 22, 24 and 26.

[10]             Rule 14.2(g) says that “so far as possible the determination of costs should  be predictable and expeditious”. One of the ways that this is achieved is through the

time allocations for the various steps identified in Sch 3. Schedule 3 identifies steps for various types of proceeding. Those types include originating applications, which this proceeding was. Because Sch 3 identifies steps for originating applications, there is no basis for determining a time by analogy with Sch 3, as Mr Moore wished to do. Nor is there any basis for using the steps for interlocutory applications, as Mr Telle wished to do.

[11]             The steps for which Robert and Wendy can claim costs, and the appropriate band, are as follows:

(a)Step 38: filing notice of opposition and supporting affidavits. Given the nature, breadth and time-span of material in Lynette’s  affidavits  to which Robert and Wendy had to respond, band C is appropriate: six days.

(b)Step 39: case management (as for ordinary proceeding).

(i)Three memoranda were filed, for which Robert and Wendy claimed one day each (notwithstanding that the second and third memoranda were brief consent memoranda). Band B is appropriate for the first memorandum (31 October 2022), band A for the other two. The total allowance is 0.8 of a day.

(ii)There was one appearance at a mentions hearing, for which 0.2 of a day may be claimed.

(c)Step 40: preparation of written submissions. For much the same reasons, band C is appropriate: three days.

(d)Step 42: appearance at hearing. The hearing took half a day.

[12]             The total allowance comes to 10.5 days, which at the daily recovery rate means a costs award of $25,095.

Should there also be an award of costs on costs?

[13]             Robert and Wendy seek costs for their costs memorandum. Lynette does the same for her memorandum.

[14]             Robert and Wendy  sought  costs  either on an indemnity  basis  in  the sum  of $78,888.17 or on a 2C basis in the sum  of $42,447.50.  They have plainly failed in that endeavour. Lynette’s position was that Robert and Wendy  should have costs as if the proceeding was merely an interlocutory application and on a 2B basis for all steps. She has plainly failed in those arguments. Costs are therefore to lie where they fall on the costs memoranda.

Result

[15]             Lynette is to pay to Robert and Wendy costs of $25,095 plus disbursements  of $144.50.

Campbell J