Mason v Dodd - [2024] NZHC 1245

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-936

[2024] NZHC 1245

BETWEEN
ALEXANDER CHARLES MASON

Plaintiff

AND

PAUL MORLEY DODD

Defendant

Hearing: On the papers

Counsel:

G J Thwaite for Plaintiff

M C Harris and S T Coupe for Defendant

Judgment:

17 May 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 17 May 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
G J Thwaite, Auckland M C Harris, Auckland Gilbert Walker, Auckland

MASON v DODD [2024] NZHC 1245 [17 May 2024]

[1] This is an application for costs in circumstances where the plaintiff discontinued his claims one week before a five day witness hearing due to commence on 4 March 2024.

[2] The defendant seeks costs and disbursements totalling $44,777.35. An uplift of 30 per cent from 2B scale costs is sought on the grounds that the plaintiff’s claims lacked merit and the plaintiff repeatedly failed to comply with Court directions.

Factual background

[3]The proceeding concerns one of a series of disputes between:

(a)Mr Mason; and

(b)Mr Dodd, Mr Mason’s daughters and many other persons who had responsibility for the care of Mr Mason’s wife, Wendy Mason,

about legal arrangements put in place (trusts and a will), and the appropriate care for Mrs Mason after she was diagnosed with dementia in 2012. Those disputes have been the subject of various proceedings in the Family Court, the High Court, the Court of Appeal,1 and the Supreme Court.2

[4] The critical events in question in this proceeding date back to 1994. In early 1994, Mr and Mrs Mason instructed Mr Dodd to form a family trust for their assets and the deed was duly settled on 26 April 1994 (the Mamari Trust). Mr and Mrs Mason were the settlors and trustees. They were also the beneficiaries, along with their three children, their grandchildren, their parents, and any future spouse. The Trust’s assets were the family home, a commercial business, and cash holdings.3

1      Mason v Dodd [2024] NZHC 219 at [6].
2      Mason v Triezenberg [2022] NZSC 99 (leave to appeal declined).
3      Mason v Triezenberg [2022] NZCA 138 at [7].

[5] Mrs Mason was diagnosed with early stage degenerative dementia in 2012. This led to the settlement of another trust under a deed dated 20 May 2013 (the Mamari (No 2) Trust), with Mr Jorgensen acting as legal adviser to Mr and Mrs Mason for these matters. The settlors were Mr and Mrs Mason, and the trustees were Mr and Mrs Mason, Ms Triezenberg (the daughter of Mr and Mrs Mason), and Mr Dodd. The beneficiaries were Mr and Mrs Mason, their three children, and their grandchildren.

[6] Following this, Mrs Mason’s dementia worsened and, by 10 August 2015 on the day of her admission to Middlemore Hospital, she was certified as mentally incapable due to her dementia. Upon her discharge on 1 September 2015, she…

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 Mason v Dodd

Details

AGLC: Mason v Dodd [2024] NZHC 1245
Case: [2024] NZHC 1245
Decision Date: 17 May 2024

CaseChat Overview and Summary

This case involves an application for costs brought by the defendant, Paul Morley Dodd, against the plaintiff, Alexander Charles Mason, after the plaintiff discontinued his claims one week before a five-day witness hearing scheduled to commence on 4 March 2024. The defendant seeks costs and disbursements totaling $44,777.35, along with a 30 per cent uplift from the 2B scale costs, based on the grounds that the plaintiff's claims lacked merit and the plaintiff repeatedly failed to comply with court directions. The case revolves around a series of disputes between the parties concerning legal arrangements, including trusts and a will, and the appropriate care for the plaintiff's wife, Wendy Mason, after she was diagnosed with dementia in 2012. The substantive claim was for professional negligence, alleging that the defendant was negligent in advising the plaintiff to establish the family trusts in 1994 and 2013. The defendant denied any negligence and claimed the plaintiff had not suffered any loss. The defendant also argued that the claims were time-barred.

The court considered the legal issues involved in awarding costs upon discontinuance, noting that unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of an incidental to the proceeding, up to and including the discontinuance. The court also considered the defendant's request for increased costs under r 14.6(3)(b) on the grounds that the claims lacked merit and the plaintiff failed to comply with court directions. The court found that the plaintiff's claims were weak, and the lack of expert evidence further weakened the case. The court also found that the plaintiff's decision to continue with the proceeding despite being aware of the lack of expert evidence was deserving of increased costs for the substantive steps the defendant was subsequently required to take.

The court awarded scale costs (with an uplift for the two trial preparation steps) of $44,095.50, plus the disbursements for filing fees of $191.90, totaling $44,286.40. The court did not accept that the plaintiff's entitlements as a beneficiary under the trusts should impact on the award of costs, stating that the usual cost consequences should follow. The court also noted that the decision of whether the plaintiff can expect those costs to be met out of assets in the Mamari trusts is a decision that will need to be assessed by the trustees in accordance with their obligations.

Orders