Robinson v Beaman
[2022] NZHC 3590
•21 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-485-000149
[2022] NZHC 3590
IN THE MATTER OF the Estate of GLENN CHRISTOPHER BEAMAN BETWEEN
NATALIE CHRISTINE ROBINSON
Applicant
AND
SHANE MICHAEL BEAMAN, JARROD JASON BEAMAN and KIM McHARDY as
litigation guardians for FYNN and AVA BEAMAN
Respondents/ Adult Interested Parties
Hearing: on the papers Counsel:
E J H Morrison & J Y Leenoh for the Applicant E Telle for Shane & Jarrod Beaman
A Gilchrist for Kim McHardy as Litigation Guardian for Fynn & Ava Beaman
M Phillipps for Temporary Administrator Vicki Ammundsen P J Napier for non-party (Mr Robinson)
Judgment:
21 December 2022
JUDGMENT OF TAHANA J
[As to costs of non-party discovery application]
This judgment was delivered by me on 21 December 2022 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
K3 Legal Limited, Auckland KooTelle Lawyers, Auckland
McHardy Parbery Lawyers, Auckland Southern Cross Chambers, Auckland
Vicki Ammundsen Trust Law Limited, Auckland
ROBINSON v BEAMAN [As to costs of non-party discovery application] [2022] NZHC 3590 [21 December 2022]
Introduction
[1] Mr Shane Beaman applied for non-party discovery against Mr Robinson. By judgment dated 23 September 2022, I dismissed Mr Beaman’s application.1 I initially reserved costs but subsequently granted leave for Mr Robinson to seek costs.2
[2] Mr Robinson now seeks indemnity costs of $12,460.00 plus GST and the disbursement of $110.00, being a total of $14,439.00. Those costs include the costs of opposing the discovery application and costs related to this application.
[3] Mr Beaman opposes the application and says the application should be dismissed and if costs are to be awarded, they should be paid out of the estate or limited to no more than $7,000.00.
[4] Counsel for Ms Robinson submits that any costs order should be met by Mr Beaman personally and not paid out of the estate.
Legal principles
[5]Rule 8.22(3) of High Court Rules 2016 (HCR) provides that:
8.22 Costs of discovery
…
(3)If an order is made under rule 8.20(2) or 8.21(2), the Judge may, if the Judge thinks it just, order the applicant to pay to the person from whom discovery is sought the whole or part of that person’s expenses (including solicitor and client costs) incurred in relation to the application and in complying with any order made on the application.
[6] Despite r 8.22(3) referring to a non-party’s costs when an order for discovery is made, this Court has determined that the same matters apply when considering costs of successfully opposing a non-party discovery application.3 That is, whether it is just that the whole or part of the non-party’s costs be paid.
1 Robinson v Beaman [costs and discovery] [2022] NZHC 2451.
2 Robinson v Beaman HC Auckland CIV-2021-485-0149, 29 November 2022 (Minute of Tahana J (Costs – non-party discovery application)).
3 AFI Management Pty Ltd v Lepionka & Co Investments Ltd [2018] NZHC 892 at [4].
[7] In considering the quantum of costs to be paid, the Court will consider whether the non-party has acted reasonably:4
… Further, while costs are always at the discretion of the court, and assuming the non-party’s response to the application was reasonable, that party’s (reasonable) actual costs ought to be met by the party seeking non-party discovery. …
[8] The above approach is also reflected in r 14.6(4)(d) of the HCR which provides that the Court may order a party to pay indemnity costs if “the person in whose favour the order of costs is made was not a party to the proceeding and has acted reasonably in relation to it.”
[9] In assessing reasonableness, the Court must “view the matter overall in order to consider whether or not the costs are reasonable in all the circumstances.”5
Submissions
Mr Robinson
[10] Counsel for Mr Robinson submits that Mr Robinson has acted reasonably by filing a notice of opposition and submissions in response. He submits that Mr Robinson has no personal interest in the proceeding and incurred the expense of opposing the application to preserve the confidentiality of documents and to safeguard the previous judgment regarding discovery dated 21 September 2021.6
Mr Beaman
[11] Counsel for Mr Beaman acknowledges that ordinarily indemnity costs ought to apply and against Mr Beaman but that there are a number of factors against indemnity costs being awarded. Counsel for Mr Beaman says these exceptional circumstances warrant no award of costs being made. Those exceptional circumstances, it is submitted, comprise:
4 At [6].
5 Davis v Independent Newspapers Ltd HC Auckland CP67SD02, 16 May 2003 at [31].
6 Robinson v Beaman [2021] NZHC 2489.
(a)That the temporary administrator had suggested that Mr Robinson join the proceeding as an interested party.
(b)Counsel for the other interested party had also sought disclosure from Mr Robinson.
(c)If the application to validate the will was successful, Mr Robinson would be the executor of the estate.
(d)Mr Robinson had filed a statement in the proceeding before the non- party discovery application.
(e)Mr Robinson had transferred funds from the deceased’s bank account.
(f)Mr Robinson had been married to Ms Robinson, the applicant.
[12] In those circumstances, Mr Beaman says it was reasonable for him to make the non-party discovery application to protect the estate.
Ms Robinson
[13] Ms Robinson opposes any order that the costs be paid out of the estate and says that Mr Beaman should pay any costs order personally. In support of this submission counsel for Ms Robinson refer to the following:
(a)Mr Beaman is not the executor of the estate.
(b)The temporary administrator had already sought discovery from Mr Robinson and reported the outcome to all parties.
(c)The information sought by Mr Beaman was not relevant to the issues in the proceeding and he was wholly unsuccessful in his non-party discovery application.
Discussion
Should the application for costs be dismissed due to exceptional circumstances?
[14] I accept that Mr Robinson has an interest in the outcome of the proceeding in circumstances where he would have been the executor of the estate if successful. Mr Robinson had filed a statement in support of Ms Robinson’s application so was not a disinterested party. The temporary administrator had suggested that Mr Robinson be subject to non-party discovery orders or joined as a party and subject to discovery orders. While the temporary administrator had sought disclosure of documents from Mr Robinson in February 2022, this was prior to the suggestion that Mr Robinson should potentially be joined to the proceeding.
[15] I do not consider that the temporary administrator’s suggestion that Mr Robinson be joined to the proceeding justified Mr Beaman making a non-party discovery application. That course of action was available to the temporary administrator but was not taken. The substantive application was determined without the need for the documentation sought by Mr Beaman indicating it was unnecessary to determine the issues.
[16] Mr Beaman also relies on the fact that Mr Robinson transferred monies from the deceased’s bank account as a reason for not awarding costs in his favour. I do not accept this is relevant to the merits of the non-party discovery application. Mr Beaman was unsuccessful in his discovery application and Mr Robinson has incurred legal costs as a result.
[17] The above interests do not make Mr Robinson a party to the proceeding such that rr 8.22(3) and 14.6(4)(d) should not apply. Nor should Mr Robinson be treated as though he is a party to the proceedings. This is consistent with the finding in Lepionka that an interest in the outcome of a proceeding does not elevate the non-party to a party.7
7 AFI Management Pty Ltd v Lepionka & Co Investments Ltd [2018] NZHC 892 at [12] and [13].
[18] I therefore do not consider that there are “exceptional circumstances” that justify dismissing the costs application.
[19] I now consider whether the quantum of costs sought should be awarded to Mr Robinson.
Conduct of Mr Robinson
[20] I accept that Mr Robinson’s conduct in responding to the application for non- party discovery was reasonable. Mr Robinson was entitled to instruct counsel, oppose the application, and file submissions.
Are the costs reasonable?
[21] Counsel for Mr Beaman submits that the costs are unreasonable in circumstances where there was no affidavit evidence nor a hearing in person. Counsel referred to the award of costs in Lepionka of $12,000.00, which involved a fully defended hearing and the award of only $1,000.00 for the costs associated with the costs application.
[22] The 2B scale costs for filing an opposition to an interlocutory application and preparing written submissions are $5,019.00.
[23] Counsel for Mr Robinson says the costs include costs related to understanding the case, including the earlier judgment regarding discovery. While the costs application was determined on the papers, a significant volume of material was filed, including a bundle of documents exceeding 1,000 pages. I accept it would have been necessary for Mr Robinson’s counsel to review that documentation.
[24] Taking into account the material filed for the non-party discovery application, the scale costs, and the award of costs in Lepionka, I do consider that the costs are high and that reasonable costs would be closer to $8,000.00 for responding to the non-party discovery application and $1,000.00 for the costs application plus disbursements. This is more than scale costs in order to reflect the volume of material that needed to be reviewed, but less than the actual costs.
Should the costs be paid out of the estate?
[25] This Court has acknowledged that one of the general principles of costs is that they follow the event, and this is not to be departed from solely on the basis that the proceedings involved a deceased’s estate.8 Courts should be reluctant to create the impression that unsuccessful litigants might get their costs paid out of an estate, without making a very strong case on the facts.9
[26] Mr Beaman argues that the costs should be paid out of the estate and reserved for consideration as part of the substantive application.
[27] The substantive application was determined by Woolford J in a judgment dated 31 October 2022.10 Counsel for Mr Beaman refers to Mr Robinson’s use of the deceased’s funds and says this justifies the costs being paid out of the estate. It is submitted that Woolford J has had the opportunity to hear submissions regarding the “wrongful removal of about $130,000 by Mr Robinson from the late Mr Beaman’s estate” and it is therefore appropriate that costs be reserved.
[28] I have reviewed Woolford J’s judgment and there is no discussion of Mr Robinson’s “wrongful removal” of funds. That indicates that the issue was irrelevant to the issues in the substantive application and supports the non-party costs application being unreasonable. I accept Ms Robinson’s submission that Mr Beaman’s non-party discovery application was misconceived, and the documents sought had no bearing on the deceased’s testamentary intentions.
[29] Further, Ms Robinson has appealed and applied to stay enforcement of Woolford J’s judgment and any costs order until the appeal is determined. Costs will not be determined until the application for stay is determined, which will not be until after 1 March 2023.11 Mr Robinson will therefore be subject to considerable delay in circumstances where he is not a party to the substantive proceeding. I do not consider this delay is reasonable or that it is necessary to await the outcome of the appeal to
8 Harris v Taylor [2016] NZHC 483.
9 Harris v Taylor [2016] NZHC 483 at [18] citing Wild v Plant [1926] P 139 (CA) at 152.
10 Robinson v Beaman [2022] NZHC 2822.
11 Robinson v Beaman HC Auckland CIV-2021-485-0149, 1 December 2022 (Teleconference Minute of Woolford J).
determine Mr Robinson’s costs application, which is limited to the non-party discovery application.
[30] Counsel for Ms Robinson refers to the size of the estate which she says is relatively modest and says it would be contrary to the interests of justice for the estate to pay. In effect, by reducing the size of the estate, this will require the successful parties to meet the costs of Mr Beaman’s unsuccessful application. I agree with this submission. While it might be appropriate for the estate to bear costs where there is a reasonable basis for pursuing a position, the outcome of both the discovery application and the substantive application indicate that the documentation Mr Beaman sought was irrelevant to the issues in the substantive proceeding.
[31] Mr Beaman also submits that he has no funds to meet a costs award. That is not a basis for denying Mr Robinson an award of costs, nor a basis for the estate to bear the costs of his unsuccessful application.
[32] I do not accept that Mr Beaman’s non-party costs application was reasonable in these circumstances such that the estate should bear the costs of his application.
Result
[33]Accordingly, I order that Mr Beaman pay the following costs of Mr Robinson:
(a)$8,000.00, being Mr Robinson’s reasonable actual costs of responding to Mr Beaman’s application for non-party discovery;
(b)$1,000.00 in respect of Mr Robinson’s reasonable actual costs of this application; and
(c)Disbursements of $110.00.
Tahana J
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