Mahon v Mahon

[2015] NZHC 2171

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-871 [2015] NZHC 2171

IN THE ESTATE OF

MELVA EILEEN MAHON

IN THE MATTER OF

an application seeking the declaration of a constructive trust

IN THE MATTER OF

an application pursuant to the Family
Protection Act 1955

BETWEEN

SUSAN ELIZABETH MAHON First Plaintiff

DAVID WILLIAM MAHON AND RACHAEL MAHON

Second Plaintiffs

AND

JOHN ROY MAHON AND DONALD COLIN GRANT MCKINNON

First Defendants

JOHN ROY MAHON AND ROGER NEWTON STANICH

Second Defendants

Hearing:

On the papers

Counsel:

C T Gudsell QC and S C Dench for Plaintiffs

H Fulton and R W Bell-Booth for J R Mahon, his children, and the J R Mahon Family Trust

M D Branch for First Defendants, the executors of the estate of

Melva Eileen Mahon (leave to withdraw)
D M O'Neil for Second Defendants, the trustees of the Melva
Mahon Inheritance Trust (leave to withdraw)

Judgment:

9 September 2015

COSTS JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3 pm on the 9th day of September 2015

MAHON v MAHON [2015] NZHC 2171 [9 September 2015]

[1]      I  have  now  considered  the  written  submissions  on  costs  made  by  the plaintiffs, and by John Mahon in his personal capacity.   I have also received a memorandum from counsel for the Melva Mahon Inheritance Trust.

[2]      Costs of the executors, and the Melva Mahon Inheritance Trust, have already been   dealt   with,   by   the   judgment   of   Associate   Judge   Christiansen   dated

25 June 2014.1 The Trust’s position is dealt with in [90]. The position of the

executors is dealt with in the last sentence of [92], and [94]. Any dispute over the extent of the executors’ claim for indemnity costs, as provided for in [94], should be referred to Judge Christiansen, having regard to my retirement.

[3]      As between the plaintiffs and John Mahon in his personal capacity, I consider that there is no reason to depart from the primary general principle that costs follow the event.  Category 2B is appropriate.  There was a settlement offer shortly before trial. That does not justify an award of increased costs.

[4]      There will be an order for costs against the plaintiffs in favour of John Mahon on a 2B basis, with disbursements, to be fixed by the Registrar.

A D MacKenzie J

Solicitors:           Raymond S Walker, Barristers & Solicitors, Auckland, for plaintiffs

Bell Booth Sherry, Takapuna,

Harkness Henry, Hamilton, for first defendants

Nielsen Law, Hamilton for second defendants

1      Mahon v Mahon [2014] NZHC 1430.