Phillips v Heremaia - [2023] NZHC 3847

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-256

[2023] NZHC 3847

IN THE MATTER of the estate of ZAHERALI KANJI MOHAMED

BETWEEN

ZAHIRA AUDREY PHILLIPS

Applicant

AND

ZARIN SUSAN HEREMAIA

Respondent

CIV-2023-409-249

IN THE MATTER

of the estate of ZAHERALI KANJI MOHAMED

BETWEEN

ZARIN SUSAN HEREMAIA

Applicant

AND

ZAHIRA AUDREY PHILLIPS

Respondent

Hearing: On the papers

Appearances:

C A Twyaman for Applicant N Burley for Respondent

Judgment:

21 December 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 21 December 2023 at 2.45 pm pursuant to rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

PHILLIPS v HEREMAIA [2023] NZHC 3847 [21 December 2023]

[1] Zahira Audrey Phillips (Audrey) and Zarin Susan Heremaia (Susan) are estranged sisters engaged in litigation involving the estate of their late father, Zaherali Kanji Mohamed, who died on 20 November 2020.

[2] The parties were encouraged to attend a judicial settlement conference chaired by Associate Judge Lester on 21 July 2023. They reached a settlement except in relation to costs. Having conducted the settlement conference, Associate Judge Lester was not able to decide costs and the matter has been referred to me.

[3] Both parties seek costs, including indemnity costs. The amount of material submitted to the Court is simply staggering. The parties have lost all sense of proportion. The material filed includes lengthy and detailed submissions for each party, reply submissions, affirmations on disputed factual matters, a 231-page bundle of documents, and a bundle of authorities.

[4] I expressed my concern about the material at a teleconference on 25 October 2023. I then issued a minute in which I confirmed I did not intend to consider the affirmations which I did not consider assisted me, and nor would I consider submissions about what had occurred at the settlement conference beyond what Associate Judge Lester recorded in his minute.1

Background

[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

1 High Court Rules 2016, r 7.79(6) and (7).

(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…

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 [2023] NZHC 3847
Case: [2023] NZHC 3847
Decision Date: 21 December 2023

CaseChat Overview and Summary

Zahira Audrey Phillips and Zarin Susan Heremaia, estranged sisters, were involved in litigation over the estate of their late father, Zaherali Kanji Mohamed. The dispute centred on the validity of two wills and the role of Susan as executor. The High Court was tasked with determining the costs incurred by both parties following a settlement reached at a judicial settlement conference.

The key legal issue was whether either party was entitled to costs after the proceedings were discontinued by consent. Rule 15.23 of the High Court Rules 2016 typically requires a discontinuing plaintiff to pay the defendant's costs, but exceptions exist if the defendant's actions rendered the litigation unnecessary or if the proceeding was redundant due to other factors.

The Court considered the conduct of both parties, the reasonableness of their positions, and the outcomes achieved. Audrey sought costs on various grounds, including wasted costs, scale costs, and indemnity costs. Susan opposed Audrey's claim and argued she was entitled to indemnity costs due to Audrey's unreasonable refusal to settle and the modest value of the estate. The Court found that neither party had a clear advantage in terms of success, and the settlement reflected a mutual resolution rather than a definitive win or loss.

Given the confidential nature of the settlement and the shared degree of success, the Court concluded that the just outcome was for costs to lie where they fell, and no order for costs would be made. The decision emphasised the Court's reluctance to conduct a mini-trial on the merits of the parties' positions after a settlement had been reached.

Orders