Scott v Garnham - [2021] NZHC 1039

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-99

[2021] NZHC 1039

UNDER the Family Protection Act 1955

IN THE MATTER

of the estate of the late Mary Patricia Scott- Smith

BETWEEN

JAZZ SCOTT

Appellant

AND

MICHAEL ROBERT GARNHAM

Respondent

Hearing: On the papers

Appearances:

S J Zindel for Appellant M R Garnham in Person K L Hoult for A Scott

Judgment:

11 May 2021

JUDGMENT OF COOKE J

(Costs)

[1] In my judgment of 23 March 2021 I dismissed the appellant’s appeal against the decision of the Family Court awarding her 10 per cent of the net value of her mother’s estate under the Family Protection Act 1955.1 I directed the parties to file memoranda if costs could not be resolved and memoranda have now been filed. Two issues have been raised by Ms Ann Scott who was effectively the successful respondent to the appeal notwithstanding the executor, Mr Garnham, is the named respondent. The issues raised are:

1 Scott v Garnham [2021] NZHC 592.

SCOTT v GARNHAM [2021] NZHC 1039 [11 May 2021]

(a)that the Court direct that the appellant’s costs should not be met by the estate; and

(b)that there are exceptional circumstances allowing for an award of costs against the appellant notwithstanding she was legally aided in accordance with s 45 of the Legal Services Act 2011.

Costs not met by the estate

[2] In her memorandum, counsel for Ms Ann Scott submitted that the appellant’s costs for the appeal should not be met by the estate. She said that there was a line of authority reflecting a practice that costs of parties to Family Protection Act claims are met by the estate, but that this was not an invariable practice and it remained in the discretion of the Court. She then argued that such a practice should not be followed in the present case.

[3] That submission was not responded to by counsel for the appellant. I expect that is because the appellant is in receipt of legal aid for the appeal and there is unlikely to be a suggestion that the estate should meet the appellant’s costs. If Ms Ann Scott’s argument in relation to s 45 was accepted I agree it would not be appropriate for the appellant’s costs liability to be met by the estate. More generally I accept that it would be unfair to Ms Ann Scott for the appellant’s costs to be met by the estate. That would, in substance, involve Ms Ann Scott paying a substantial amount of those costs given that the appellant is only entitled to 10 per cent of the residue of the estate, with the balance being Ms Ann Scott’s entitlement.

[4]Accordingly I direct that the costs of the appeal should not be met by the estate.

Order under s 45

[5]Section 45 of the Legal Services Act 2011 provides:

45 Liability of aided person for costs

(1)If an aided person receives legal aid…

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 Scott v Garnham

Details

AGLC: Scott v Garnham [2021] NZHC 1039
Case: [2021] NZHC 1039
Decision Date: 11 May 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Scott v Garnham involved an appeal by Jazz Scott against a Family Court decision that awarded her 10 per cent of her mother's estate under the Family Protection Act 1955. The appeal was dismissed by the High Court. The case now concerns the issue of costs, specifically whether the appellant's costs should be met by the estate and whether there are exceptional circumstances that warrant an award of costs against the appellant despite her legal aid status under the Legal Services Act 2011. The respondent, Ms Ann Scott, who is the successful party in the appeal, argued that the appellant's costs should not be met by the estate and that exceptional circumstances exist to justify an award of costs against the appellant.

The court considered whether the appellant's costs should be borne by the estate. It was noted that the appellant was legally aided and that it would be unfair for Ms Ann Scott to effectively pay the appellant's costs due to her limited entitlement under the estate. The court directed that the costs of the appeal should not be met by the estate. The court then examined whether there were exceptional circumstances under section 45 of the Legal Services Act 2011 to justify an award of costs against the appellant. Ms Ann Scott argued that the appellant's allegations against her and her failure to accept settlement offers constituted exceptional circumstances. However, the court found that these factors did not constitute exceptional circumstances as defined by the statute. The court concluded that the appellant's conduct did not abuse the court's processes and that there were no exceptional circumstances warranting an award of costs against the appellant.

The court's final orders were that the costs of the appeal should not be met by the estate and that there were no exceptional circumstances to warrant an award of costs against the appellant. The court emphasized that the pursuit of the appeal led to the depletion of the estate's value, despite settlement offers made by Ms Ann Scott, but found that the circumstances did not meet the threshold for exceptional circumstances under the statute.

Orders