Sloots v Sloots

[2020] NZHC 2318

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 as to highlight aspects of the defendant’s behaviour which had led to the state of deadlock between the parties, there was ample evidence before the Court, both in the form of the plaintiff’s affidavits and in the record of the defendant’s conduct of her defence, to have justified (if the Court had felt the need to do so) a series of conclusions as to conduct on the part of the defendant which satisfies the tests under r 14.6(4)(i).

[12]              Given the highly dysfunctional relationship between the administrators, it was inevitable that the plaintiff’s application would be granted. The statement of defence confirmed the existence of the dysfunctional relationship yet opposed the application. The plaintiff and her legal advisers, before commencing this proceeding, had made repeated and reasonable efforts to avoid litigation but were met with occasional responses from the defendant which only served to confirm the need to have this Court make orders. The defendant was expressly put on notice that the plaintiff, if having to commence this proceeding, was likely to incur significant legal costs which she would seek to recover.

[13]              Other aspects of the defendant’s subsequent conduct reinforce the unnecessary, vexatious and improper nature of the defendant’s defence including much (ultimately irrelevant) focus on historical grievances against the plaintiff. For completeness I record that the defendant filed no evidence to establish in any way the allegations she made against the plaintiff.

[14]              The defendant’s limited response to the costs application reveals that she must have failed to take notice of the pre-litigation warning which she received in relation to the potential recovery of costs. There is no basis on which the Court should in this case depart from the usual principle that costs follow the event, requiring the defendant in this case to pay costs to the plaintiff. The response made by the defendant — that she will respond to the present costs application by instructing lawyers to appeal,

simply serves to reinforce her willingness to utilise or respond to litigation inappropriately.

[15]              The plaintiff is justified in this case in seeking indemnity costs. The sum sought is reasonable having regard to the steps taken by the plaintiff.

Order

[16]              I order the second-named defendant, Rose-Marie Hubertha Johanna Spijkerman to pay to the plaintiff, Jennifer Mary Anne Sloots, costs and disbursements in the total sum of $32,046.97.

Osborne J

Solicitors:

Hardy-Jones Clark, Blenheim

Copy to: R-M H J Spijkerman, Christchurch (self-represented Defendant)

SCHEDULE A

Step	Description	Time allocation	Total
1	Commencement of proceedings by plaintiff	3	$7,170.00
10	Preparation for first case management conference	0.4	$956.00
11	Filing memorandum for first or subsequent case management conference or mentions hearing:	0.4	$956.00
12	Appearance at mentions hearing or callover (tele-conference on 2 June 2020)	0.2	$478.00
22	Filing interlocutory application: x3 •  Application for directions as to service; •  Application for substituted service; •  Application to strike out the Defendant’s statement of defence and counterclaim.	0.6 per application 1.8 total	$4,302.00
24	Preparation of written submissions: •  For the ‘strike out’ application	1.5	$3,585.00
28	Obtaining judgment without appearance	0.3	$717.00
29	Sealing order: x2 •  Order as to substituted service; •  Final substantive order	0.2 per order 0.4 total	$956.00
Total	8	$19,120.00