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Mumby v Mumby

Mumby v Mumby

Case [2016] NZHC 2836 25 November 2016

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-000012 [2016] NZHC 2836

BETWEEN
NEIL ROBERT MUMBY AND CHERIE

KAREN CARNEGIE Plaintiffs

AND

BRETT JAMES MUMBY AND NEIL ROBERT MUMBY

First Defendants

BRETT JAMES MUMBY Second Defendant

Last submissions: 29 July 2016

Judgment:

25 November 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 25 November 2016 at 4.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

MUMBY v MUMBY [2016] NZHC 2836 [25 November 2016]

Introduction

[1] In this proceeding the plaintiffs, Neil Mumby (Neil) and Cherie Carnegie (Cherie), challenged the validity of the will of their mother, Glennys Mumby (Glennys), on the ground that either she did not know and approve its contents or that the will was the product of undue influence by their brother Brett Mumby (Brett). In addition, they brought a claim under the Family Protection Act 1955. I found that Glennys knew and approved the contents of her will and that Brett had not exerted undue influence over her. I found that there had been a breach by Glennys of her duty to Neil, which resulted in a modest adjustment in his favour. Cherie’s claim failed.

[2] The issue of costs now falls to be considered and a number of difficult issues arise, the most significant of which are whether some or all of the costs should be paid from the estate and whether the fourth sibling, Glenda Mumby (Glenda), who was not a party but was represented at trial, should be entitled to costs.

Should costs be met from the estate?

Relevant principles

[3] All matters as to costs are at the discretion of the Court,1 though this discretion must be exercised in a principled way in accordance with Part 14 of the High Court Rules.2 The usual starting point is that the party who fails ought to pay costs to the party who succeeds.

[4] In estate litigation, however, there is a longstanding practice of awarding costs out of the estate and on a solicitor/client basis. The principles underlying this practice were summarised in Re Paterson (deceased):3

(i) if the litigation originates in the fault of the testator e.g. by the state in which he left his testamentary writings, or by his eccentric or irrational habits and mode of life or of those interested in the residue, the costs may properly be paid out of the estate.

(ii) if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party to

1      High Court Rules, r 14.1.
2      Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [16].
3      Re Patterson (Deceased) [1924] NZLR 441 (SC) at 442–443; citing Mitchell v Gard (1863) 3
Sw & Tr 275 and Spiers v English [1907] P 122.

question either the execution of the will or the capacity of the testator or to put forward a charge of undue influence…

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 Mumby v Mumby

Details

AGLC: Mumby v Mumby [2016] NZHC 2836
Case: [2016] NZHC 2836
Decision Date: 25 November 2016

CaseChat Overview and Summary

The High Court of New Zealand, Whangarei Registry, heard a case between Neil Robert Mumby and Cherie Karen Carnegie, the plaintiffs, and Brett James Mumby and Neil Robert Mumby, the defendants, concerning the validity of the will of Glennys Mumby. The plaintiffs challenged the will on grounds of lack of knowledge and approval by Glennys and undue influence by Brett. They also brought a claim under the Family Protection Act 1955. The court found that Glennys knew and approved the contents of her will and that Brett had not exerted undue influence over her. However, there was a breach by Glennys of her duty to Neil, resulting in a modest adjustment in his favour. Cherie’s claim failed.

The court then turned to the issue of costs, considering whether they should be paid from the estate and whether Glenda Mumby, who was not a party but represented at trial, should be entitled to costs. The court emphasised that all matters relating to costs were at the discretion of the Court, exercised in a principled way in accordance with the High Court Rules. In estate litigation, there was a longstanding practice of awarding costs out of the estate and on a solicitor/client basis, though parties should not be encouraged into unmeritorious litigation by the expectation that costs would be met from the estate.

The court examined the costs claimed by Brett, Neil, and Glenda separately, applying relevant principles. Brett was entitled to costs for successfully defending the challenge to the will, with an uplift for certain unfounded allegations. The court decided that half of Brett's costs should be met from the residuary estate, with the other half to be paid by Neil and Cherie. Neil was entitled to costs for his successful family protection claim, to be met from the residuary estate. Glenda, who was not a party but represented at trial, was entitled to costs on a reduced basis, to be met from the residuary estate.

The final orders were that Brett was entitled to costs of $59,701.81, with half to be paid from the residuary estate and the other half by Neil and Cherie. Neil was entitled to costs of $12,545 to be met from the residuary estate. Glenda was entitled to costs of $26,492.40 to be met from the residuary estate.

Orders