Perkins v Pike

[2018] NZHC 2687

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-604192 [2018] NZHC 2687

IN THE MATTER

of the estate of BETTY WAIN

BETWEEN

GARRY VIVIAN PERKINS, LINDA MARY PERKINS AND MICHAEL JOHN HOCKLY as executors of the estate of BETTY WAIN

Applicants

AND

JANE ELIZABETH PIKE AND FRANCES DREWELL

Caveators

Hearing:	On the papers
Counsel:	S Clapham for Applicants S W B Foote for Caveators
Judgment:	18 October 2018

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 18 October 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Gaze Burt, Auckland

Gallie Miles, Te Awamutu

PERKINS v PIKE [2018] NZHC 2687 [18 October 2018]

[1]      I have an application for costs before me.  The application arises out of an application for timetabling orders and the production of testamentary and related documents.  By the time the matter came before me, agreement had been reached as to a way forward.  In my minute on this matter, I indicated that my preliminary view was that costs should be paid on a 2B basis, given what appears to be lack of engagement by the executors’ solicitors with the caveator’s solicitors.

[2]      I now have the benefit of Ms Clapham’s memoranda on this. She says, in short:

(a)The executors endeavoured to engage with the caveator prior to making the application for Order Nisi;

(b)Simple oversight on the part of the executors’ solicitors resulted in a lack of communication with the caveator’s solicitor immediately prior to the caveator’s application;

(c)      There was no merit in the caveator’s application.

[3]      Ms  Clapham’s  memoranda  do  not  cause  me  to  change  my  mind.    The executor’s failed to engage with the caveator’s solicitor’s which necessitated the caveator’s application. The prior apparent failure to engage with them, while justifying the application for Order Nisi, does not bear on their subsequent failure to engage with the caveator.

[4]      There shall be costs against the executors, payable by the estate, on a 2B basis as set out in the memorandum of counsel for the caveator.