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Phillips v Heremaia

Phillips v Heremaia

Case [2025] NZCA 394 8 August 2025

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA86/2024
[2025] NZCA 394

BETWEEN	ZAHIRA AUDREY PHILLIPS Appellant
AND	ZARIN SUSAN HEREMAIA Respondent

Hearing:	26 March 2025
Court:	Palmer, Brewer and Gault JJ
Counsel:	J J Pietras and B E Jones for Appellant N Burley for Respondent
Judgment:	8 August 2025 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gault J)

This is an appeal against a costs judgment of Associate Judge Paulsen dated 21 December 2023 determining there should be no order for costs in each of two proceedings that settled (except as to costs) at a judicial settlement conference.[1]
[1]Phillips v Heremaia [2023] NZHC 3847 [judgment under appeal] at [41].
The proceedings form part of an unfortunate dispute between two sisters, Audrey (the appellant) and Susan (the respondent),[2] about the estate of their late father, Mr Mohamed, who died on 20 November 2020.

Background

[2]As in the High Court’s costs judgment, we refer to them in this way not for informality but for ease of differentiation.

The background is conveniently set out in the High Court judgment:[3]
[3]Emphasis omitted.
[5]       Mr Mohamed made a will dated 31 October 2003 (2003 will). The 2003 will left his estate in equal parts to Audrey and Susan and appointed Maurice Burney as the executor.
[6]       Mr Mohamed made another will on 11 August 2016 (2016 will) that was on materially the same terms as the 2003 will, except:
(a) there was an additional clause forgiving any debt owed to him by Susan; and
(b) in place of Mr Burney, Susan was appointed the executor.
[7]       Following Mr Mohamed’s death Susan took no immediate steps to apply for probate.
[8]       On 1 October 2021, Audrey applied for letters of administration of the 2003 will. I understand she had no knowledge of the 2016 will. While that proceeding is not presently before me, Audrey applies for costs in relation to it.
[9]       On 16 December 2021, Susan sought grant of probate of the 2016 will. In response, Audrey lodged a caveat to prevent the grant.
[10]      There are two proceedings presently before me, one filed by Audrey and one by Susan.
[11]      Audrey’s claim (CIV-2022-409-256) was filed on 23 June 2022. An amended claim was filed on 25 November 2022. Audrey’s amended claim sought orders that:
(a) letters of administration with the 2003 will annexed be granted to the Public Trust;
(b) the 2016 will was not valid for want of testamentary capacity and undue influence; and
(c) in the alternative to (a) and (b) above, that the 2016 will be granted to probate in solemn form on the following basis:
(i) that Susan be removed as trustee and executor; and
(ii) that the Public Trust be appointed as an independent trustee and executor.
[12]      Susan’s claim (CIV-2023-409-249) was filed on 18 May 2023. It applied for orders that:
(a) the application be consolidated with Audrey’s application;…

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 Phillips v Heremaia

Details

AGLC: Phillips v Heremaia [2025] NZCA 394
Case: [2025] NZCA 394
Decision Date: 8 August 2025 at 11.30 am

CaseChat Overview and Summary

The appeal in Phillips v Heremaia was brought by Zahira Audrey Phillips against Zarin Susan Heremaia, concerning the distribution of their late father's estate following the execution of two wills. The dispute centred around the validity of the second will, executed in 2016, which appointed Susan as the executor and left her a specific disposition of property. Audrey, who was not privy to the 2016 will, challenged its validity and sought an independent executor for the estate. The proceedings were settled in a judicial settlement conference, with costs reserved for later determination. Audrey appealed the High Court's decision to not award her costs, arguing that she was the predominant successful party and that Susan's actions had unnecessarily prolonged the litigation.

The Court of Appeal reviewed the matter, considering whether the High Court had erred in its assessment of success, its refusal to award increased or indemnity costs, and its application of the relevant costs principles. The Court held that both parties shared a degree of success, with Audrey achieving her goal of an independent executor and Susan defending the validity of the 2016 will. The Court of Appeal found no error in the High Court's decision, affirming that it was not appropriate to engage in a merits review for cost purposes when the substantive disputes had settled. The Court of Appeal also agreed that the High Court was correct to conclude that costs should lie where they fell, considering the overall circumstances and the parties' shared success.

The Court of Appeal dismissed the appeal and made no order as to costs, finding no exceptional circumstances that warranted an order in favour of the appellant, Audrey Phillips.

Orders