Sloots v Sloots

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-62

[2020] NZHC 2318

UNDER THE

Administration Act 1969 and the Trustee Act 1956

IN THE MATTER

of the Estate of CORNELIA ANTONIA MARIE SLOOTS

BETWEEN

JENNIFER MARY ANNE SLOOTS

Plaintiff

AND

JENNIFER MARY ANNE SLOOTS and ROSE-MARIE HUBERTHA JOHANNA

SPIJKERMAN, as Trustees and Executors of the estate of Cornelia Antonia Marie Sloots Defendants

Counsel:

N McKessar for Plaintiff

R H J Spijkerman (second-named defendant) in person

Judgment:

7 September 2020

Determined on the papers

JUDGMENT OF OSBORNE J

(costs)

Introduction

[1]                 On the plaintiff’s application, the Court made orders removing the plaintiff and her sister, the second-named defendant, as administrators of the estate of their late mother.1 A trustee company was appointed in their place. The orders were made by reason of deadlock between the two administrators.

1      Sloots v Sloots [2020] NZHC 1670.

SLOOTS v SLOOTS [2020] NZHC 2318 [7 September 2020]

[2]I reserved costs.

Costs application

[3]The plaintiff applies for indemnity costs, together with disbursements.

[4]                 The second defendant, to whom I will refer as simply the “defendant” in this judgment, opposes any award of costs. In an email to the Case Officer, in response to the plaintiff’s costs memorandum, the defendant says that if the plaintiff pursues costs she (the defendant) will be asking the Court for leave for time to instruct lawyers to appeal all actions undertaken to date, and she will be looking to recover those costs from the plaintiff.

[5]                 As the defendant in her email to the Case Officer referred to personal circumstances relating to herself and her husband, and a written proposal she had sent to the plaintiff, I issued a Minute providing the defendant with a further ten working days in which to file any memorandum as to costs. None was filed.

The costs claimed

[6]                 Mr McKessar has provided copies of the accounting for fees as between his firm and the plaintiff.

[7]                 The fees total (inclusive of GST) $29,137.99. An award of indemnity costs in that sum is sought.

[8]                 Alternatively, Mr McKessar submits that increased costs should be awarded in the sum of $27,500, which represents a 50 per cent increase over what would be an award of costs calculated on a 2B basis.2 The 2B calculation, as correctly calculated by Mr McKessar, is set out in Schedule A to this judgment.

[9]  In addition to such costs as the Court may award, the plaintiff seeks recovery of her reasonable disbursements, details of which have been provided to the Court. The reasonable disbursements total $2,908.98.

2      High Court Rules 2016, category 2 under r 14.3(1) and band B under r 14.5(2).

Are indemnity costs justified?

[10]              Under r 14.6(4)(i), the Court may award indemnity costs where a party has acted vexatiously, frivolously, improperly or unnecessarily in commencing, continuing or defending a proceeding or a step in a proceeding.

[11]              While the substantive judgment was not written in such terms…