Sila v Nanai-Leota - [2019] NZHC 2868

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-978

[2019] NZHC 2868

UNDER Part 8 of the High Court Rules 2016; Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of the estate of Faalepo Paul Sila

BETWEEN

SILIUA VAA SILA

Plaintiff

AND

UAITA NANAI-LEOTA

Defendant

On the papers:

Counsel:

O Woodroffe for Plaintiff

B J J Sheehan and A S Cavanaugh for Defendant

Judgment:

5 November 2019

JUDGMENT OF CHURCHMAN J (COSTS)

Introduction

[1] Mr Faalepo Paul Siva (the deceased) died intestate in early 2017. The defendant, the deceased’s adopted son, was granted letters of administration in May 2017.

[2] The plaintiff bought proceedings on 21 November 2017 alleging that, during a visit to the deceased’s home in Nelson in 2015, he had promised to give her the whole of his estate and to leave sufficient funds to enable her to take his remains back to Samoa.

SILA v NANAI-LEOTA (COSTS) [2019] NZHC 2868 [5 November 2019]

[3] As the plaintiff is impecunious, the parties agreed on 8 August 2018 that she would deposit $10,000 in the High Court as security for costs. However, that payment was, for various reasons, not made, leading the defendant to file an application dated 9 November 2018 for security for costs.

[4]The following week, on 16 November 2018, the $10,000 was paid into Court.

[5] In determining that application for security for costs, it was found that only the plaintiff’s claim relating to repatriating the deceased’s remains had any prospect of success; there appeared to be no realistic legal basis upon which she could be said to have an interest in the deceased’s Nelson property.1 The Court, being satisfied that the plaintiff was impecunious and her claim weak, held that an order for security for costs was necessary, although it did not need to be an amount that would represent the actual likely costs of the hearing.2 In the circumstances, it was deemed appropriate that security be fixed at $10,000 and that amount already paid into Court be held as security for costs.3

[6] The proceedings were discontinued on 4 July 2019 and the defendant accordingly seeks costs on a 2B basis.

Relevant law

[7] Where a plaintiff discontinues a proceeding, he or she will generally be required to pay costs to the defendant unless the Court orders otherwise, although this presumption may be displaced when it is just and equitable to do so.4 Toogood J recently highlighted the following points which emerge from case law:5
(a) The reasonableness of the parties’ stances will be taken into account; whether it was reasonable for the plaintiff to bring and continue the proceeding and whether it was reasonable for the defendant to oppose it. It is not sufficient for the plaintiff to show merely that it had reasonable grounds to believe it would be the successful party.

1 Sila v Nanai-Leota [2018] NZHC 3163 at [51]-[52].
2 At [60] and [62].
3 At [63].
4…

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.

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Details

Case: [2019] NZHC 2868
Decision Date: 5 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Sila v Nanai-Leota involved a dispute between the plaintiff, Siliu Vaa Sila, and the defendant, Uaita Nanai-Leota, regarding the estate of the deceased, Faalepo Paul Sila. The plaintiff alleged that the deceased had promised to leave his estate to her and to provide sufficient funds for the repatriation of his remains to Samoa. The defendant, the deceased's adopted son, was granted letters of administration. The plaintiff sought to discontinue the proceedings, and the defendant applied for costs on a 2B basis.

The central legal issue was whether it would be just and equitable to order the plaintiff to pay the defendant's costs following the discontinuance of the proceedings. The Court had to consider factors such as the reasonableness of the parties' actions, the plaintiff's impecuniosity, and the merits of the claim.

The Court found that the plaintiff had acted opportunistically in bringing the proceedings, which lacked merit except for the claim regarding the repatriation of the deceased's remains. Although the plaintiff argued she was impecunious and had made efforts to settle amicably, the Court was not persuaded that the circumstances warranted displacing the presumption that the plaintiff should pay the defendant's costs. The Court awarded 2B costs to the defendant, reduced by 25% due to the plaintiff's impecuniosity. The Court also disallowed certain costs items as misconceived.

The final orders were that costs and disbursements in the amount of $22,405.42 were awarded in favour of the defendant. The $10,000 paid into Court as security for costs was to be released to the defendant, and the remaining sum of $12,405.42 was to be paid by the plaintiff.

Orders