Moleta v Darlow
[2022] NZHC 620
•31 March 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-858
CIV-2019-404-1469 [2022] NZHC 620
UNDER Part 18 of the High Court Rules 2016 BETWEEN
DELLISSE MOLETA
Plaintiff
AND
CHRISTOPHER ROBERT DARLOW
Defendant
JOLENE SCHOLLUM
Second DefendantLORRAINE MOLETA
Third Defendant
Hearing: On the papers Judgment:
31 March 2022
JUDGMENT OF HINTON J
(Costs)
This judgment was delivered by me on Thursday 31 March 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:…………………………
Solicitors:
Grove Darlow, Auckland (First Defendant)
McVeagh Fleming, Auckland (Second Defendant) Greg Kelly Law Limited, Wellington (Third Defendant)
Copy to:
Plaintiff
MOLETA v DARLOW [2022] NZHC 620 [31 March 2022]
[1] On 5 August 2021, I gave judgment in favour of the defendants.1 The plaintiff (Dellisse), the second defendant (Jolene) and the third defendant (Lorraine) are all sisters. This proceeding arose in unfortunate circumstances following the death of their mother, Mrs Moleta.
[2] Jolene and Lorraine originally made claims in the Family Court for further provision from their mother’s will under the Family Protection Act 1955 (the FPA claims). Dellisse subsequently brought a claim against the estate in this Court alleging that properties owned by the estate are partly held on constructive trust for her (the Constructive Trust claim). The FPA claims were transferred and the proceedings heard together before me in the High Court in a five day trial.
[3] I found that the properties owned by the estate are not owned on constructive trust for the benefit of Dellisse. As a result, Dellisse’s Constructive Trust claim was dismissed. I also found that Mrs Moleta had breached her moral duty to both Jolene and Lorraine. To remedy that breach, I ordered that Mrs Moleta’s final will be varied to provide each of them with $950,000 from the estate. In sum, Jolene and Lorraine were the successful parties on both claims.
[4]The first defendant, the executor of the estate Mr Darlow, does not seek costs.
[5]Jolene seeks:
(a)costs calculated on a 2B basis on the High Court scale for all steps taken in relation to her FPA claim in the High Court;
(b)costs calculated on a 2B basis on the District Court scale for all steps taken in relation to her FPA claim in the Family Court;
(c)costs on a 2B basis with a 50 per cent uplift for all steps taken in respect of the Constructive Trust claim because the claim lacked merit and Dellisse failed to comply with directions of the Court;
1 Moleta v Darlow [2021] NZHC 2016.
(d)costs on a 2B basis for steps taken in support of Lorraine’s interlocutory application to remove Dellisse as executor of Mrs Moleta’s estate; and
(e)costs on a 2B basis with a 50 per cent uplift for steps taken in opposition to Dellisse’s application to adjourn the trial because Dellisse contributed unnecessarily to the time and expense of the application.
[6]In total, Jolene seeks a costs award of $124,449.50 plus disbursements of
$3,308.13.
[7]Lorraine seeks:
(a)costs calculated on a 2B basis on the High Court scale for all steps taken in relation to her FPA claim in the High Court plus an uplift of 25 per cent on scale costs for one step;
(b)costs calculated on a 2B basis on the District Court scale for all steps taken in relation to her FPA claim in the Family Court;
(c)costs on a 2B basis with a 50 per cent uplift for all steps taken in respect of the Constructive Trust claim because the claim lacked merit and Dellisse failed to comply with directions of the Court;
(d)costs on a 2B basis for the steps taken in relation to her successful interlocutory application to remove Dellisse as executor of Mrs Moleta’s estate;
(e)costs on a 2B basis with a 50 per cent uplift for steps taken in opposition to Dellisse’s application to adjourn the trial because Dellisse contributed unnecessarily to the time and expense of the application; and
(f)certification for costs of second counsel.
[8]In total Lorraine seeks $134,136.75 in costs plus disbursements of $6,529.10.
[9]Dellisse’s position is:
(a)costs should lie where they fall or in the alternative the estate should bear the costs rather than Dellisse in her personal capacity;
(b)there should be no 25 per cent uplift for one step in the FPA claim as argued by Lorraine;
(c)the costs award to both Jolene and Lorraine should not be increased by 50 per cent for all steps related to the Constructive Trust claim because it was not meritless, and she complied with Court directions and orders; and
(d)the costs award to both Lorraine and Jolene should be reduced by 50 per cent overall, because:
(i)the FPA claims were not entirely successful;
(ii)the costs award to Jolene should be reduced because of alleged personal attacks against Dellisse in the material she filed;
(iii)the costs award to Lorraine should be reduced as she needlessly delayed proceedings by refusing to engage in mediation and pursuing an argument that lacked merit.
Law on costs
[10] The principles relating to costs are set out in Part 14 of the High Court Rules 2016 (the Rules), with the general principles set out at r 14.2. The starting point is the principle that “the party who fails with respect to a proceeding or interlocutory
application should pay costs to the party who succeeds”,2 and that “so far as possible the determination of costs should be predictable and expeditious.”3
[11] Despite this starting point, there are circumstances which may justify the Court ordering that the unsuccessful party pays increased or decreased costs.4 Rule 14.6(3) sets out various considerations that the Court must take into account in determining whether to exercise its discretion to order increased costs. In this case the relevant provisions are as follows:
(3)The court may order a party to pay increased costs if—
…
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or with a direction of the court; or
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules;
…
[12] Where, in terms of r 14.6(3)(b)(ii), an argument lacks merit, the increased costs apply to all steps.5
[13] The Court may order a party to pay indemnity costs if, relevantly, “the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding”.6
2 High Court Rules 2016, r 14.2(1)(a).
3 Rule 14.2(1)(g).
4 Rules 14.6(1) and 14.7.
5 NR v MR [2014] NZCA 623, (2014) 22 PRNZ 636.
6 Rule 14.6(4)(a).
[14] Rule 14.7 sets out the circumstances in which the Court may reduce or refuse an order for costs, including where:
(d) although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or
…
(f) the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or a direction of the court;or
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, or documents, or accept a legal argument; or
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding;
…
Costs for the substantive claims
[15] As stated at [3], Jolene and Lorraine were the successful parties in both proceedings. The starting point is that they are both entitled to costs as the successful parties.7 The standard band allowance for a proceeding of this nature is 2B and I consider that appropriate here. The parties’ written submissions raise a number of issues including:
(a)whether Lorraine should receive a 25 per cent uplift in relation to one step in the FPA claim;
(b)whether Jolene and Lorraine should be awarded costs increased by 50 per cent for all steps taken in relation to the Constructive Trust claim;
7 High Court Rules 2016, r 14.2(1)(a).
(c)whether Lorraine should have costs for second counsel certified;
(d)whether the costs award to Jolene and Lorraine should be reduced; and
(e)who should the costs be ordered against.
Costs claimed in relation to the FPA claim
[16] Both Jolene and Lorraine are prima facie entitled to costs on a 2B basis for steps they took in both the Family Court and High Court for their successful FPA claims against the estate based on the applicable scale in each Court. I note that in terms of s 96(2) of the District Courts Act 1947 this Court must make any order for costs in a transferred proceeding.
[17] Lorraine claims costs for affidavits prepared in the Family Court and the High Court. Her counsel, Mr Kelly, submits that although usually costs would not be claimed in both courts for the preparation of affidavit evidence, there is no risk of double counting due to the volume of evidence including the updating evidence required and the passage of time between the commencement of the claim and the eventual hearing. Dellisse does not seem to take issue with this and I accept it is appropriate.
Whether Lorraine should receive a 25 per cent uplift in relation to one step in the FPA claim
[18] Lorraine seeks a 25 per cent uplift for the costs awarded on the step of “Preparing written opening and submissions in respect of Family Protection claim (including cross border issues)”. One day is allowed for this step. Mr Kelly submits that considerable time was spent engaging on the issue of whether the Australian assets owned by the estate could be taken into account in the FPA claim. Dellisse only conceded the point when the hearing was already underway. I found that, consistent with case law and leading commentary, overseas assets can be taken into account in a claim under the FPA.8 Mr Kelly submits that the extra time and cost spent on this
8 Moleta v Darlow, above n 1, at [73]-[76].
should be remedied by a 25 per cent uplift in relation to the preparation of submissions for the FPA claim.
[19] Dellisse opposes Mr Kelly’s submission that there should be an uplift in relation to the issue of jurisdiction over the Australian assets. She acknowledges that she conceded the issue at the hearing, but refers to Bradbury v Westpac Banking Corp which held that abandonment of a cause of action is not of itself a pointer for increased or indemnity costs.9 Dellisse says applying this principle by analogy, her concession of an issue at the hearing does not justify an award of increased costs.
[20] While Dellisse’s argument about the relevance of the Australian assets in the FPA claims lacked merit, I do not consider it warrants departing from the default rule that the determination of costs should be predictable and expeditious.
[21] I therefore decline Lorraine’s application for a 25 per cent uplift for the one step in the FPA claim.
Whether Jolene and Lorraine should be awarded costs increased by 50 per cent for all steps taken in relation to the Constructive Trust claim
[22] Jolene and Lorraine both seek costs on a 2B basis with a 50 per cent uplift for all steps taken in the Constructive Trust claim. Their respective counsel make similar arguments. They submit that Dellisse contributed unnecessarily to the time and expense of the proceeding because the claim lacked merit and Dellisse failed to comply with the rules and directions of the Court.
[23] In my decision I found that the Constructive Trust claim was undermined by Dellisse’s refusal to concede that if she and her mother had an expectation of equal ownership across all of the properties owned by them both together and separately, then that expectation would also apply to the properties owned solely by Dellisse.10 I also found that Dellisse was unable to meet her evidential burden that she contributed
9 Bradbury v Westpac Banking Corp [2009] 3 NZLR 400, at [79].
10 Moleta v Darlow, above n 1, at [101].
to the properties in a more than minor way.11 Much of her evidence and claims were also not credible.
[24] Mr Fuscic, counsel for Jolene, and Mr Kelly, both submit that the Constructive Trust claim was brought for an ulterior motive – to deplete the estate of assets in order to prevent the FPA claims from succeeding. They argue there was no evidence in support of the claim,12 therefore it entirely lacked merit pursuant to r 14.6(3)(b)(ii).
[25] Counsel submit that Dellisse consistently ignored the timetabling orders of the Court made on 21 December 2020 for the Constructive Trust claim. They refer to the judgment of Moore J where he notes that Dellisse did not comply with the orders and obstructed her lawyers from assisting with compliance.13 Counsel submit that this conduct materially increased the costs to Lorraine and Jolene, who were, until the judgment was delivered, claimants against the estate, rather than beneficiaries.
[26] Dellisse submits that there should be no increased costs for steps taken in relation to the Constructive Trust claim. She says she filed the Constructive Trust claim on the advice of her solicitors; it was neither hopeless nor made in bad faith. Dellisse says she pursued her claim in the expectation it would succeed based on the exceptionally close relationship she shared with her mother. Dellisse refers to the comments of Gendall J in Harper v Beamish:14
Simply because a party fails cannot without more result in a finding that they took or pursued an argument that lacks merit so as to require an uplift from scale costs. Much depended upon the evidence that was given, and was yet to be given, leading to the final outcome of the plaintiff's case. Whilst it, in the end, failed and was held to be without merit — and on one view was doomed
— I do not consider the plaintiffs to have acted in a way which justifies an increase of costs over scale being made against them. Whilst the plaintiffs failed, their belief that there were proper issues to contest, and advance, was not so unreasonable so as to mulct them with increased costs and they will pay quite substantially for the failure of their claim. As it turned out, it would have been better for them to have settled, although it is not disclosed to the Court what any settlement offer was. But I am not satisfied that this is a case where the individual plaintiffs should be ordered to pay costs in excess of that which is provided for in the scale, which applies in normal circumstances.
11 At [95].
12 At [95]-[96].
13 Moleta v Darlow [2021] NZHC 564 [Adjournment Decision], at [36].
14 Harper v Beamish HC Napier CIV-2009-441-636, 27 March 2012, at [13].
[27] Dellisse accepts there were defaults in her compliance with some timetabling directions, but she argues it cannot be said that she failed to act reasonably, justifying an order for increased costs. Dellisse says she was extremely busy caring for her mother in the last stages of her life so was unable to gather the necessary evidence. She says that from the start of the proceedings she has sought legal representation and that some of the defaults occurred when she was in the process of obtaining new counsel. Dellisse submits it is her legal right to obtain proper legal representation, she rejects any criticism of herself for exercising that right. (Dellisse makes other irrelevant and unsubstantiated comments such as lawyers just wanting money for their own interests, making it hard to find a suitable one.)
[28] Mr Kelly responded to these submissions. He submits that Dellisse’s defaults were persistent and significantly increased the time and cost to the other parties. Mr Kelly refers to Moore J’s decision refusing to adjourn the hearing where the Judge commented that every litigant is entitled to terminate their instructions and seek new counsel, but the adverse consequences should not be visited on the other parties.15
[29] I find that Lorraine and Jolene are entitled to costs with a 50 per cent uplift given the steps unnecessarily forced upon them in opposing the meritless Constructive Trust claim.16 This conclusion is supported by Dellisse’s unreasonable conduct in failing to comply with the rules and orders of the Court including discovery, which contributed unnecessarily to the time and expense of the proceeding. I should add that Dellisse’s attempt to blame her lawyers appeared to me to be unfounded.
Whether Lorraine should have costs for second counsel certified
[30] Mr Kelly also seeks certification for second counsel. He says that all preparation for the Constructive Trust claim, and updating steps in relation to the FPA claims, took place within the eight weeks prior to the hearing, after Dellisse’s adjournment application was declined, and due to her delay in providing discovery. Mr Kelly submits that the urgency involved, the complexity of this process, and its
15 Adjournment Decision, above n 13, at [34].
16 Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 at [47].
proximity to the hearing, justifies an allowance for second counsel attending the hearing to assist.
[31] Schedule 3, item 27 of the Rules provides for the recovery of an allowance for second and subsequent counsel if allowed by the Court. I do not consider recovery for second counsel is appropriate in this case. While there was some urgency following the adjournment application being declined, counsel should have been preparing for the trial before the application was declined. The proceeding had been ongoing for multiple years at that point. Similarly, the proceeding was not overly technical or complex in a manner that would justify second counsel.
Whether the costs award to Jolene and Lorraine should be reduced
[32]Dellisse makes three arguments in favour of reducing the costs award:
(a)Lorraine and Jolene were only partly successful in their FPA claims;
(b)Jolene’s conduct in the proceeding; and
(c)Lorraine’s failure to engage in mediation and preparation of submissions which lacked merit.
[33] Dellisse submits that Jolene and Lorraine were not entirely successful in their FPA claim as they sought an award of 25 per cent of the estate each but were only awarded 17 per cent each. Dellisse says they were in effect 70 per cent successful in their FPA claim. She says Lorraine and Jolene took an unreasonable position when they sought awards of 25 per cent, which was contrary to the established law. She submits that this created additional legal costs for her in defending the FPA claim and therefore there should be a reduction in costs.
[34] Dellisse submits that cost awards should be reduced where claimants make personal attacks.17 She says that Jolene’s case centred on discrediting her and attacking her honesty and integrity. For example Jolene referred to the embezzlement
17 Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA), at [152].
charges Dellisse faced in Australia which have nothing to do with the proceeding, and played voice messages left by Dellisse which had already been transcribed and presented to the Court. Dellisse also says that Jolene was selective in what information she provided to the Court, and in particular Jolene did not disclose information about the school fees Mrs Moleta paid for Jolene’s daughter. Dellisse says this conduct increased her costs and prolonged the hearing time. Therefore the costs order in favour of Jolene should be reduced.
[35] Dellisse says that the costs order in favour of Lorraine should be reduced as Lorraine refused to engage in mediation to resolve the Australian proceedings. Dellisse says the parties were required by law to attend mediation before the hearing in New South Wales. She says she initiated the mediation and that Lorraine declined to attend at the eleventh hour. Dellisse asserts this is an example of her attempting to resolve the issues and Lorraine impeding the process. Mr Kelly has a different account of this. He says that Lorraine was told she could attend the mediation by telephone, but Dellisse’s counsel objected to this on the day of the mediation. Lorraine’s Australian lawyer deposed that the conduct of the mediation went urgently before a duty judge but Dellisse had left the building by that stage so the judge was unable to resolve the issue.
[36] Dellisse submits that there should also be a reduction in costs because Lorraine pursued arguments which lacked merit. Dellisse says insistence by Lorraine and Jolene on bringing the properties owned jointly by Dellisse and Mrs Moleta into the proceeding was without legal basis. Mr Kelly denies that this was a meritless argument. I agree. I found that the jointly owned properties were relevant when dismissing the Constructive Trust claim and when determining the FPA claim.18
[37] I reject Dellisse’s submission that Lorraine and Jolene should be awarded reduced costs because they were awarded a lesser percentage of the estate than they sought. It is true that Lorraine and Jolene did not succeed to the full extent of their claim but success on more limited terms is still success and furthermore their claims were not unreasonable.19 I am similarly unconvinced by Dellisse’s other arguments
18 Moleta v Darlow, above n 1, at [102] and [131].
19 Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379, at [26].
for a reduction in costs. There is neither factual basis nor precedent for them. In particular I do not consider that the evidence tendered by Joelene and Lorraine was either irrelevant or selective. I consider that in all of the circumstances it was measured.
Who should the costs be ordered against
[38] Lorraine and Jolene argue that costs awards should be made against Dellisse personally. Mr Kelly submits that costs should be paid from Dellisse’s share of the estate to avoid enforcement issues.
[39] Dellisse submits that the estate should bear the costs and not herself in her personal capacity. She refers to Re Paterson (deceased),20 where the Court held that the estate should bear the costs where the litigation arose due to a fault of the will- maker. Dellisse says the estate “is a substantial one” and has sufficient funds to pay costs. Comparatively, Dellisse says that her financial position is precarious. Her only income comes from the rental properties, and that has to cover the mortgages.
[40] Mr Kelly submits in respect of the FPA claim costs could be ordered against the estate or Dellisse personally. Re Paterson (deceased) was decided in the early 20th century. The modern position is that costs will follow the event in most cases, however in some instances it may be appropriate for costs to be awarded from the estate.21 Mr Kelly says that as Dellisse is entitled to the residuary estate (and I have awarded fixed sums) it makes little difference whether costs for the FPA claims are ordered against Dellisse personally, or ordered to be paid from the estate. However he argues that costs should be awarded against Dellisse personally in order to ensure that costs remain a predictable feature of estate litigation as is encouraged by r 14.2(g).
[41] Mr Kelly submits that in relation to the Constructive Trust claim, it would be inappropriate for costs to be ordered against the estate. He says the Constructive Trust claim was an ordinary civil claim, to which ordinary costs principles will apply.
20 Re Paterson (dec’d) [1924] NZLR 441 (SC).
21 As reflected in W M Patterson Law of Family Protection and Testamentary Promises (5th ed, Wellington, LexisNexis 2021) at 17.41, p 355-356.
[42] In any event, Mr Kelly asks that any costs order be met from Dellisse’s share of the estate.
[43] I agree that costs in relation to both claims should be awarded against Dellisse personally. I also agree with Mr Kelly that the preferable course would be for all costs to be met from Dellisse’s share of the estate. I require authority before so ordering.
Interlocutory applications and costs
[44] These applications were heard by Moore J but it seems he did not make costs orders.
[45] Lorraine, with the support of Jolene, applied to the High Court to have Dellisse removed as executor of Mrs Moleta’s estate. At the same time, Dellisse was directed by the Court to file an application under s 33A of the Trustee Act 1956 seeking directions because as the plaintiff in the Constructive Trust claim, she was essentially suing herself as executor.22 Moore J made orders removing Dellisse as an executor of Mrs Moleta’s estate and appointing Mr Darlow in her place.23 He dismissed the s 33A application as Dellisse was no longer executor of the estate. In the decision, Moore J stated that Lorraine is entitled to costs as the successful party, but as I say he did not fix them.
[46] On 12 February 2021, Dellisse applied to adjourn the trial scheduled to commence on 10 May 2021. Moore J declined the application. He stated, “I am easily satisfied that Dellisse’s application for an adjournment has, all but entirely, been caused by the dilatory nature of her participation in virtually all aspects of this litigation”.24 Justice Moore sought memoranda on costs and indicated that Lorraine and Jolene, as the successful parties on the adjournment application, would be entitled to costs on a 2B basis with a 50 per cent uplift.25
22 Moleta v Moleta [2020] NZHC 2680, at [6].
23 At [102]-[103].
24 At [34].
25 Adjournment Decision, above n 13, at [47].
[47] Lorraine seeks costs for her successful application to remove Dellisse as executor, her opposition to the s 33A application, and her opposition to the adjournment application. She seeks a 50 per cent uplift in costs for steps related to the adjournment application as indicated by Moore J.
[48] Jolene seeks costs amounting to $11,472 for the steps she took to support Lorraine’s successful application removing Dellisse as executor. Jolene seeks $6,921 in costs for steps she took opposing the adjournment application (inclusive of a 50 per cent uplift indicated by Moore J).
[49] For the reasons set out by Moore J, being primarily that Jolene and Lorraine were clearly successful on these applications and neither should have been necessary, I award costs as sought.
Disbursements
[50] Lorraine seeks disbursements of $6,529.50. This includes printing, travel costs and gown hire. There is precedent for awarding disbursements of this nature.26 I consider the disbursements sought are reasonable. In particular, given that Lorraine was not based in Auckland, it is reasonable that her counsel was not either, and had to travel here for the trial.
[51] Jolene seeks disbursements of $3,308.13 being filing fees, LINZ searches, photocopying and service fees.
[52]Disbursements are awarded as sought.
Conclusion
[53]Lorraine and Jolene are entitled to costs as the successful parties.
[54]Lorraine is entitled to costs on a 2B basis for the steps she took in relation to:
26 See Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-1850, 26 September 2007 at [12] for approval of photocopying etc. Zheng v Deng [2021] NZCA 190 for approval of gown hire. And Buis v Accident Compensation Corporation (2010) 19 PRNZ 585 (HC) at [25] for approval of travel costs where out of town counsel is reasonable.
(a)her application to remove Dellisse as executor and oppose the s 33A application;
(b)her opposition to Dellisse’s application to adjourn the trial, with a 50 per cent uplift;
(c)her FPA claim (steps taken in the Family Court on the basis of the District Court 2B scale); and
(d)her opposition to Dellisse’s Constructive Trust claim, with a 50 per cent uplift.
[55] Calculated from the schedule of costs filed by Lorraine (with the costs of second counsel and 25 per cent uplift for one step in the FPA claim removed), Lorraine is entitled to $126.071.75 plus disbursements of $6,529.50.
[56]Jolene is entitled to costs on a 2B basis for the steps she took in relation to:
(a)her support of Lorraine’s application to remove Dellisse as executor and oppose the s 33A application;
(b)her opposition to Dellisse’s application to adjourn the trial, with a 50 per cent uplift;
(c)her FPA claim (steps taken in the Family Court are to be calculated at District Court 2B scale); and
(d)her opposition to Dellisse’s Construction Trust claim, with a 50 per cent uplift.
[57]Jolene is awarded $124,449.50 in costs plus disbursements of $3,308.13.
[58] All costs awards are made against Dellisse in her personal capacity. I am prepared to order that they be paid from her share of the estate, but require a
memorandum as to my authority to make that order before I do so. Leave is reserved in that respect.
Hinton J
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