Peterberic v Eady - [2020] NZHC 2079

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-879

[2020] NZHC 2079

IN THE MATTER OF the Estate of DIANA MAITLAND EADY

IN THE MATTER OF

the trust settled by ROY GRANVILLE McELROY on 12 March 1965 known as the DIANA M EADY FAMILY TRUST and the ECI TRUST

BETWEEN

PETER BERIC

Plaintiff

AND

OLAF GUY EADY

JOANNA MAITLAND CHAPLIN and

SIMON HOLM EADY as executors and trustees of the Estate of the late DIANA MAITLAND EADY

First Defendants

OLAF GUY EADY
JOANNA MAITLAND CHAPLIN and
SIMON HOLM EADY in their capacities as trustees of the DIANA M EADY FAMILY TRUST
Second Defendants

OLAF GUY EADY
JOANNA MAITLAND CHAPLIN and
SIMON HOLM EADY in their capacities as recipients of the assets of the DIANA M

EADY FAMILY TRUST

Third Defendants

OLAF GUY EADY
JOANNA MAITLAND CHAPLIN and
SIMON HOLM EADY in their capacities as trustees of the ECI TRUST

Fourth Defendants

PETER BERIC v OLAF GUY EADY [2020] NZHC 2079 [18 August 2020]

Hearing: 10 August 2020

Appearances:

Vanessa Bruton QC and Priscilla Brown for the Plaintiff Fiona McGeorge for the First Defendants

Simon Jefferson QC and Amanda K Hyde for the Second to Fourth Defendants

Judgment:

18 August 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 18 August 2020 at 11:00am
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Priscilla Brown, Auckland, for the plaintiff
Martelli McKegg, Auckland, for the 1st Defendants
Keegan Alexander (Peter Spring/Amanda K Hyde), Auckland, for the 2nd to 4th Defendants

Counsel:
V Bruton QC, O’Connell Chambers, Auckland, for the Plaintiff
F N McGeorge, Barrister, Eldon Chambers, Auckland, for the 1st Defendants Simon Jefferson QC, Trinity Chambers, Auckland, for the 2nd to 4th Defendants

[1] This decision is on costs on the defendants’ applications for security for costs, which were to be heard on 10 August 2020. On 7 August 2020, however, the plaintiff advised that he had been granted legal aid for this proceeding. With that, the defendants advised that they withdrew their security for costs applications. They nevertheless sought costs against the plaintiff. As well as costs, the hearing on 10 August 2020 dealt with the second to fourth defendants’ applications to strike out parts of the plaintiff’s fifth amended statement of claim.

[2] The plaintiff began this proceeding in 2018. All defendants applied for security for costs. The second to fourth defendants filed theirs in September 2018. Their ground for seeking security was that the plaintiff did not have the means to meet an order for costs if he were to fail in the proceeding. While the plaintiff opposed the security for costs applications, he did not advise that he intended to apply for legal aid.

[3] The security for costs applications were to be heard on 4 March 2019 but were adjourned in light of the plaintiff’s intimation that he intended to amend his pleadings. Costs on…

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 Peterberic v Eady

Details

AGLC: Peterberic v Eady [2020] NZHC 2079
Case: [2020] NZHC 2079
Decision Date: 18 August 2020

CaseChat Overview and Summary

This case involved a costs decision following applications for security for costs by the defendants in a proceeding by the plaintiff against the executors and trustees of the estate of the late Diana Maitland Eady. The defendants argued that the plaintiff did not have the means to meet an order for costs if he were to fail in the proceeding. However, the plaintiff applied for and was granted legal aid, leading the defendants to withdraw their applications for security for costs. Nevertheless, the defendants sought costs against the plaintiff for delay in applying for legal aid, arguing that they wasted costs on the security for costs applications.

The court considered whether the plaintiff should be ordered to pay costs under the usual costs rules. The court found that it would not have ordered the plaintiff to provide security for costs once he was granted legal aid. The court also noted that under the rules, unless there were special reasons to the contrary, costs on an opposed interlocutory application must be fixed in accordance with the rules when the application is determined and become payable when they are fixed. The court awarded the plaintiff costs under category 2 in resisting the application for security for costs, but there was a deduction from his costs for the defendants' costs on a category 2 basis for preparing their submissions in support of their security for costs applications. The court also found that there should only be one set of costs between the plaintiff and the defendants collectively.

The court did not direct that costs were to be paid immediately, as it had to give its decision on the first defendants' strike-out application. The outcome of that application may have an impact on costs and the court may wish to hear further from the parties.

Orders