Rogers v Kennedy - [2020] NZHC 2317

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000284

[2020] NZHC 2317

IN THE MATTER of the estate of Thomas James Kennedy

BETWEEN

PETER IOANE ROGERS

Plaintiff

AND

ROSALIE ANNIE KENNEDY

First Defendant

AND

ELIZABETH MARGARET GRAHAM

Second Defendant

AND

MICHAEL JOHN KENNEDY

Third Defendant

AND

SUSAN SHARON ROGERS

Fourth Defendant

AND

JOHN KINGSLEY by his litigation guardian, Michelle Pearce

Fifth Defendant

Hearing: (On the papers)

Counsel:

David Wilson and James Donovan for the Plaintiff Greg Stringer for the First Defendant

No appearances for the Second to Fifth Defendants

Judgment:

7 September 2020

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 7 September 2020 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

ROGERS v KENNEDY & ORS [2020] NZHC 2317 [7 September 2020]

Introduction

[1] Following the death of Thomas Kennedy in 2018, the plaintiff commenced proceedings, maintaining that the deceased had made a valid will rather than dying intestate. The first defendant, Ms Rosalie Kennedy (the deceased’s mother), claimed that the document was forged.

[2] The proceeding was set down for trial on 29 and 30 June 2020. On 19 June 2020, the plaintiff discontinued the proceeding. This judgment deals with costs owed to the first defendant.

Submissions

First defendant

[3]Mr Stringer, for the first defendant, seeks indemnity or increased costs of

$67,586.45, on the basis that the plaintiff should have known his claim had no prospect of success.1 The first defendant had evidence from Linda Morrell, a forensic document examiner, questioning the handwriting said to be the deceased’s in the purported will. A report from the expert was annexed to affidavits of the first defendant, and a second report from December 2018 was released to the plaintiff as discovery. Accordingly, Mr Stringer states that the plaintiff should not have continued the proceeding when he was aware of Ms Kennedy’s position and Linda Morell’s evidence. The weight of evidence leads to the inference that the plaintiff sought to make financial gain from improperly pursuing the proceedings.

[4] Alternatively, the first defendant seeks 2B costs of $28,441, plus disbursements of $8,267 as follows:

Steps Allocated days

2 Commencement of defence 2

20 Discovery 2.5

21 Inspection 1.5

13 Case management conference 0.3

3 Reply 0.8

1 See Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400; Cross v Queenstown Lakes District Council [2016] NZHC 2772 at [12].

Steps Allocated days

11 Preparing memorandum 0.4

11 Preparing memorandum 0.4

33 Preparing briefs 2

33B Preparing for trial 2

11.9

x daily recovery rate $2390 = $28,441 (total costs)

+ $8,267 disbursements ($110 filling fee + $8,157 Linda Morrell fee)

Plaintiff

[5] Mr Wilson, for the plaintiff, submits that it would be inappropriate to impose indemnity or increased costs. The evidence of Linda Morrell was not decisive; the plaintiff had his own handwriting expert giving contrary evidence. The proceeding was promptly discontinued after two witnesses…

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 Rogers v Kennedy

Details

AGLC: Rogers v Kennedy [2020] NZHC 2317
Case: [2020] NZHC 2317
Decision Date: 7 September 2020

CaseChat Overview and Summary

The High Court of New Zealand heard a case concerning the estate of Thomas James Kennedy, where Peter Ioane Rogers claimed that a valid will existed, while Rosalie Annie Kennedy, the deceased’s mother, argued that the will was forged. The case was discontinued by the plaintiff before the trial. The first defendant sought increased or indemnity costs, arguing that the plaintiff should have known his claim had no prospect of success. The plaintiff countered that the case was not unmeritorious and the first defendant’s claim for costs was excessive.

The court considered whether the first defendant could claim indemnity costs under the High Court Rules 2016. The court ruled that there was no sound basis for increased or indemnity costs as there had been no judicial finding on the validity of the will. The court also determined that expert witness fees and expenses could be claimed as disbursements if necessarily incurred and reasonable in amount. Finally, the court found that the first defendant could claim 2B costs for preparing briefs, preparation for trial, discovery and inspection as the time allocations claimed were reasonable.

The plaintiff was ordered to pay the first defendant costs of $28,441 and disbursements of $8,267. The court ruled that the proceeding has been categorised as 2B, and any claim for a departure from the prescribed steps must be compelling, especially where a proceeding concluded prematurely. The time allocations claimed were reasonable, and the court was not satisfied by the plaintiff's general suggestions as to reduction.

Orders