McNeish v McArthur - [2020] NZHC 1611

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000798

[2020] NZHC 1611

IN THE MATTER OF the Estate of Ian James McArthur

BETWEEN

DARYL WARREN McNEISH and JOANNE MARIE McNEISH

Plaintiffs

AND

JAMES McARTHUR

Defendant

On the Papers

Counsel:

D J Ballantyne and C J Cousins for the Plaintiffs

S D Campbell and J Anson-Holland for the Defendant

Judgment:

7 July 2020

JUDGMENT OF DOOGUE J

(Costs)

Introduction

[1] This application for costs by the defendant follows my judgment dated 12 December 2019.1 I found the plaintiffs had failed to establish that the will of Ian McArthur dated 5 March 2013 was invalid (being in breach of mutual wills made by Ian and his wife Lorraine McArthur on 18 December 2002).2

1 Due to the impacts of COVID-19, the application was not brought to my attention until 18 June 2020.
2 McNeish v McArthur [2019] NZHC 3281.

McNEISH v McARTHUR (Costs) [2020] NZHC 1611 [7 July 2020]

[2] The plaintiffs seek to displace the dual presumptions that costs follow the event and that the losing party should pay costs to the successful party.3 They ask the Court to let costs lie where they fall.

[3] The Estate was entirely successful in defending the claim. I found there was insufficient evidence to establish the plaintiffs’ claim to the standard required by the doctrine of mutual wills.

Defendant’s submissions

[4] Counsel for the defendant relied on Shirley v Wairarapa District Health Board as authority for the longstanding principle that unless there are exceptional reasons, costs should follow the result.4 He submitted there are no exceptional circumstances in this case.

[5] The defendant does not seek increased or indemnity costs. The defendant also points to the fact that they have not claimed costs for second counsel.

Plaintiff’s submissions

[6] The plaintiffs relied on their good faith and certain claims about findings that were made or that ought to have been made in the proceeding. Put simply, much of the plaintiffs’ submissions were directed to relitigating the facts as I found them to be. I do not intend to recite those submissions as they are inappropriate.

[7] The plaintiffs also relied on a line of authority in the context of probate and the Wills Act 2007 (and its predecessor) for the propositions that where litigation originates from fault on the testator’s part or a challenge is made on sufficient and reasonable grounds, costs may properly be paid out of the estate or an unsuccessful party may properly be relieved from costs.5

3      High Court Rules 2016, r 14.2(1)(a).
4      Shirley v Wairarapa District Health Board [2006] NZSC 63, 3 NZLR 523 at [19].
5      See, for example, Harris v Taylor [2016] NZHC 483 at [9]; Squires v Nijsse HC Auckland CIV-2002-404-1618, 6 July 2004 at [6].

[8] In addition, they submitted on a similar approach has been adopted in the context of the Family Protection Act 1955 where the court’s traditional – but…

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 McNeish v McArthur

Details

AGLC: McNeish v McArthur [2020] NZHC 1611
Case: [2020] NZHC 1611
Decision Date: 7 July 2020

CaseChat Overview and Summary

In the case of McNeish v McArthur, the plaintiffs, Daryl Warren McNeish and Joanne Marie McNeish, sought to challenge the validity of a will executed by Ian James McArthur. The plaintiffs contended that the will was invalid due to a breach of mutual wills executed by Ian and his late wife, Lorraine McArthur. The defendant, James McArthur, successfully defended the claim in the High Court of New Zealand. Following the decision, the defendant applied for costs, which were initially delayed due to the impacts of COVID-19.

The legal issues before the court involved the application of the principle that costs typically follow the event and that the losing party should pay costs to the successful party. The plaintiffs argued for an exception to this rule, citing various authorities from the context of probate, family protection legislation, and general civil litigation, which permit costs to be paid out of the estate or to lie where they fall under certain circumstances. The plaintiffs claimed that Ian McArthur's conduct contributed to the litigation, he failed to honour his agreement with Lorraine McArthur, and that he had created an expectation in the plaintiffs' minds that he would honour Lorraine McArthur's wishes. They further argued that these factors made it unjust and inequitable for them to pay costs to the defendant.

The court considered the arguments presented but ultimately found that the plaintiffs had not provided exceptional reasons to depart from the established principles of costs. The court acknowledged that all parties acted in good faith and that the defendant had been entirely successful in defending the claim, which failed due to an insufficiency of evidence. The court also noted that the plaintiffs had been legally advised throughout the proceedings and that the defendant acted appropriately in defending the claim. The court concluded that the plaintiffs had failed to displace the well-established principles regarding costs and ordered that the plaintiffs pay costs to the defendant in the sum of $30,244.50 plus $110.00 in disbursements.

Orders