Malcolm v Johns (aka de Faria)

[2022] NZHC 978

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2020-443-55

[2022] NZHC 978

UNDER

the Trustee Act 1956

IN THE MATTER

of an application pursuant to section 51 of the Trustee Act 1956

BETWEEN

MAREE PATRICIA MALCOLM

Plaintiff

AND

CRAIG LESTER JOHNS (also known as CRAIG DE FARIA)

Defendant

Hearing:

On the papers

Appearances:

S W Hughes QC for the Plaintiff A F Johnston for the Defendant

C A Gelston for the Subject Person

Judgment:

10 May 2022

JUDGMENT (NO 3) OF COOKE J

(Costs)

[1]    Following my judgment of 10 December 20211 and my judgment of 8 March 20222 setting out the Court’s final orders, by submissions dated 28 March 2022 the plaintiff sets out her claim for costs, and by memorandum dated 6 April 2022 the defendant sets out his opposition, to which counsel for the plaintiff has replied by memorandum dated 11 April.

1      Malcolm v John [2021] NZHC 406.

2      Malcolm v John (No 2) [2022] NZHC 388.

MALCOLM v JOHNS [2022] NZHC 978 [10 May 2022]

[2]    As I understand the defendants position it is that costs of the proceeding should lie where they fall, albeit that the schedule attached to counsel for the defendant’s memorandum contemplates a cost award in the defendant’s favour.

[3]    The plaintiff should be awarded the costs of these proceedings. There is no basis for a conclusion that costs should lie where they fall. The plaintiff established that the defendant was acting inappropriately in his roles as trustee and attorney and that he should be removed from these roles.   In accordance with the principle in      r 14.2(1)(a) of the High Court Rules 2016 the defendant should pay costs to the plaintiff as the successful party.

[4]    Under r 14.7(d) the costs award can be reduced if the party has succeeded overall, but failed in relation to a cause of action or issue which significantly increased the costs to the party opposing costs. I do not think that provision applies because the Court removed the plaintiff as well as the defendant from the role as trustee — the plaintiff still substantially succeeded on this claim. But given the plaintiff was not successful in relation to the contention that Mrs John did not have capacity to make the attorney appointments, and that significant evidence and submissions were devoted to this issue, there should be some reduction in the plaintiff’s costs award because of this. In all the circumstances there will be a 20 per cent reduction in the costs awarded to the plaintiff for this reason.

[5]    I otherwise agree that the proceedings are properly calculated as category 2 proceedings, and with the claims set out in the schedule of costs attached to the plaintiff’s submissions dated 28 March 2022. The 20 per cent reduction applies only to the scheduled costs claims, and not to the disbursements which are allowed.

[6]    Costs are awarded on that basis, to be calculated and fixed by the Registrar if necessary.

Cooke J