O'Toole v O'Toole
[2012] NZHC 3618
•21 December 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2010-419-1676 [2012] NZHC 3618
UNDER the Family Protection Act 1955
IN THE MATTER OF the last Will and Testament bearing date 5
December 2009 and the Estate of JOHN FRANCIS O'TOOLE formerly of Honolulu, State of Hawaii in the United States of America, Retired and Deceased
BETWEEN CAITLIN MAREE O'TOOLE First Plaintiff
ANDTHE OFFICIAL ASSIGNEE Second Plaintiff
ANDMICHAEL JOSEPH O'TOOLE First Defendant
ANDGRAEME DONALD MANKELOW Second Defendant
Hearing: (on the papers)
Counsel: P T Finnigan for First Plaintiff
C T Jones for Second Plaintiff
C M Starr for First and Second Defendants
M M Bell and A M Lake for K O'Toole and P O'Toole
Judgment: 21 December 2012
COSTS JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 21 December 2012 at 3.45 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
O'TOOLE V O'TOOLE HC HAM CIV-2010-419-1676 [21 December 2012]
[1] These orders as to costs follow a judgment I gave in this matter on 5 April
2012. At the conclusion of my judgment I said that the parties might file submissions on costs if they were unable to resolve matters between themselves. The parties have since filed submissions, including submissions in reply.
[2] These proceedings comprised an application by the First and Second Plaintiffs for provision from the estate of John Francis O’Toole (“the testator”), pursuant to the Family Protection Act 1955 (“Act”). The First Plaintiff (“Caitlin”) commenced proceedings in December 2010.
[3] Caitlin is the testator’s granddaughter and is a minor. The Court appointed Caitlin’s mother, Vicki Maree Foss, as Caitlin’s litigation guardian in the proceedings.
[4] The Official Assignee in the bankruptcy of Laurence O’Toole became a party to the proceeding, as the Second Plaintiff, in September 2011. The proceedings were well advanced by then. Laurence O’Toole is a son of the testator. For reasons set out below, I order the Official Assignee to bear its own costs and disbursements in this matter.
[5] The First Defendant, the testator’s brother, is the attorney of the executor in the administration of the testator’s estate in New Zealand. The Second Defendant is the executor named in the testator’s will, although he has renounced his position.
[6] The “Beneficiaries” are Kevin O’Toole and Peter O’Toole, the testator’s other two sons. The Beneficiaries have received or will receive the vast majority of the testator’s assets. Prior to his death the testator was the registered proprietor of, or held the beneficial interest in, real property in the United States. The testator transferred these assets to the Beneficiaries five days before he died. One of the Beneficiaries estimated that the properties were worth approximately US$340,000. As at the date of death, the testator’s estate included cash of more than NZ$330,000 and about US$40,000. The testator made a bequest of $1000 (presumably US$) in
favour of Laurence. The remainder of the estate was left to the Beneficiaries in equal shares.
[7] In early September 2011, about nine months after proceedings had been commenced, the Defendants and the Beneficiaries each filed an objection to jurisdiction and an application to dismiss the Plaintiffs’ proceedings (“application”). The application was made on the basis that the Court does not have jurisdiction to make orders under the Act if the testator is domiciled outside of New Zealand as at the date of death. Having heard the application, I concluded that the testator was domiciled outside of New Zealand as at the date of death and that the Court did not have jurisdiction as a result.
[8] In their submissions as to costs, counsel for the Defendants and Beneficiaries submit that the outcome on the application was straight forward, or words to that effect. For myself, I did not find it so. Moreover, the lateness with which the Beneficiaries and Defendants brought the application suggests that the issue and outcome were not quite as straight forward as counsel now submit.
[9] Putting the matter of jurisdiction to one side, and as best as can be ascertained as at September 2011, the Plaintiffs had a strong case for further provision from the testator’s estate on the basis that he had failed in his moral duty. I do not accept the submission of counsel for the Defendants and Beneficiaries that the Plaintiffs’ legal advisers should have recognised the jurisdictional point from the outset. The application fell to be determined on the evidence, and that evidence was in the control of the Defendants and Beneficiaries.
[10] For these reasons, I accept the submission of counsel for Caitlin that the testator’s estate should bear the costs and reasonable disbursements of Caitlin, and of the Defendants and Beneficiaries in respect of all steps in the proceedings prior to the application being filed and served, say 1 September 2011. The proceeding warrants costs on a 2B basis. It may be that the Defendants are entitled to recover their solicitor/client costs from the estate in any event.
[11] The Official Assignee filed its claim several days after the application was filed, so it participated knowing that the jurisdictional issue was at large. Also, counsel for the Official Assignee did not bear the burden of the argument at the hearing of the application. In the circumstances, I consider the appropriate course is for the Official Assignee to bear its own costs and disbursements.
[12] I turn then to the issue of how costs and disbursements on the application should be met.
[13] Counsel for Caitlin submits that these costs too should be borne by the Estate. Counsel for the Defendants and Beneficiaries seek an order that their costs should be paid by the Plaintiffs. They seek costs on a 2B basis with the exception of the costs of filing the application and evidence in support. They submit that this comprised a great deal of work and evidence and that they should have costs on a 2C basis for that part of the case. With respect to them, this does tend to undermine the earlier submission that the matter was straight forward.
[14] The Defendants and Beneficiaries also submit that the Court should refrain from making any order that would prevent their recovering their costs and disbursements from Caitlin’s litigation guardian.
[15] I propose to order that Caitlin bear her own costs and disbursements in the proceedings from 1 September 2011 onwards, that is essentially on the application. For reasons set out below, I decline to make an order against the Plaintiffs in favour of the Defendants or Beneficiaries in respect of their costs and disbursements on the application. Those costs and disbursements are to be met from the estate, if an order to that effect is required.
[16] The conduct of the application fell largely on counsel for the Beneficiaries. The Defendants appeared by counsel, but to support the Beneficiaries’ stance. Accordingly, if I had considered that I should make an order for costs and disbursements against either or both of the Plaintiffs, the quantum would have been fixed so that it did not exceed the sum due to one successful party. I would not have allowed a sum for second counsel as I do not consider that second counsel was
necessary and I would not have allowed the disbursements that are claimed because the Beneficiaries chose to instruct counsel from Christchurch. In reaching my judgment I was assisted by information and submissions that counsel for Caitlin put before the Court. Accordingly, although I consider she must bear her own costs on the application, I decline to make her pay costs. As I have said, the Official Assignee did not take an active role at the hearing of the application.
[17] For these reasons, I order:
(a) The First Plaintiff’s costs and disbursements in the proceedings, up to
1 September 2011, are to be paid from the testator’s estate. Such costs are to be paid on a 2B basis. The Registrar is to fix such costs and disbursements in the event of dispute. The First Plaintiff is to bear her own costs and disbursements in respect of all matters after 1
September 2011.
(b) The Second Plaintiff is to bear its own costs.
(c) The Defendants’ and Beneficiaries’ costs and disbursements in the proceedings are to be paid from the testator’s estate.
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M Peters J
Solicitors: Foley & Hughes, Auckland: [email protected]
Evans Bailey, Hamilton: [email protected]
Corcoran French, Christchurch:
Counsel: Paddy Finnigan, Barrister, Auckland – email: [email protected]
Copy for: Insolvency and Trustee Service, Auckland: [email protected]
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