Sutherland v A

[2022] NZHC 325

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-601985

[2022] NZHC 325

BETWEEN

QUAID SUTHERLAND

Applicant

AND

A, a minor by his litigation guardian Caveator

Hearing:	On the papers
Appearances:	J I Taylor and M L Rhodes for Applicant J L W Wass for Caveator
Judgment:	1 March 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]                  This proceeding concerns the Estate of Ian Malcolm Sutherland who died intestate. One of his children, the applicant, sought letters of administration and obtained a decree nisi for the administration of the estate. The caveator,

, by his guardian, lodged a caveat against the issue of a decree absolute on the ground that he too was a child of the deceased. From the outset, the caveator’s contention has been that an independent administrator should be appointed. Ultimately, as a result, it would appear, of sound advice received by, and good sense on the part of, both parties, the matter was resolved by a consent order made on       9 February 2022 appointing independent administrators.

[2]The caveator now seeks costs from the estate in relation to the proceeding.

SUTHERLAND v A [2022] NZHC 325 [1 March 2022]

[3]                  The applicant opposes any award of costs from the estate. In the alternative, he contends that if the caveator is to have an award so should he.

[4]                  The principles that apply to costs in litigation are well settled. Costs are quintessentially a matter for the Court’s discretion. However, the rules contain a costs regime from which the Court only tends to depart in extraordinary cases. There are sound policy reasons for this. The primary reason is the importance of costs in litigation being predictable. Costs generally follow the event, that is to say that the successful party in the case will be entitled to an award of costs. As to quantum, the rules are designed to assess the amount of costs objectively having regard to the complexity of the case and the time that various steps in the case are likely to occupy. These are then assessed according to scales, 1–3 in relation to complexity and A–C in relation to the temporal assessment.

[5]                  The caveator here says that he achieved the outcome he was seeking, albeit by consent, and should be entitled to costs accordingly. He contends for an award of costs on a 2B basis, reflecting the fact that the case is not out of the ordinary. He says that costs should be paid from the estate. He accepts that the applicant too should have an award on the same terms.

[6]                  The applicant’s position is that this is a case in which costs should be left to lie where they have fallen, or, in other words, that both parties should bear their own costs, for two reasons.

[7]                  First, the applicant does not accept that the caveator was the successful party in the proceeding. I disagree. Mr Taylor contends that it was reasonable for the applicant to bring his application. That is a sound enough proposition. But it does not meet the point. The applicant having brought his application in the terms that he did was ultimately what lead to the caveator lodging his caveat. Furthermore, on the face of it, the caveator received all that he sought. On any definition, he was successful.

[8]                  Second, the applicant contends that there was an agreement between the parties that costs should lie where they have fallen.

[9]                  In particular it is said that the applicant’s agreement to the resolution of the proceeding was conditional upon the parties’ agreeing that there would be no costs claims.

[10]              I have of course reviewed the relevant correspondence and the helpful commentary that both counsel have provided as to the same.

[11]              The position is complicated by the fact that there were at the relevant time two proceedings involving these parties, paternity proceedings under the Status of Children Act 1969 and this proceeding. Some of the correspondence deals with both matters, and costs issues, in a confusing way. This has given rise to diametrically different interpretations of the correspondence.

[12]              The caveator’s solicitors’ wrote to the applicant’s solicitors on 8 November 2021 seeking clarification as to aspects of earlier correspondence and saying that their understanding of the applicant’s settlement proposal at that stage was that “neither [the caveator nor the applicant] will seek costs against the other personally, in either the Status of Children Act or administration proceedings. Our client will consent to that course, on the basis that the parties may have their costs of the estate”. The applicant’s solicitors responded to this on 17 November. That letter was headed “Costs of SOCA and inspection proceedings” so, on its face, relating only to the Status of Children Act proceeding. The letter said that the caveator’s interpretation of earlier correspondence as set out in their letter of 8 November 2021 was inaccurate and continued “If paternity is established by [the caveator] then each parties’ reasonable costs should be borne by the estate”.

[13]              As Mr Taylor submits it is that sentence upon which Mr Wass relies in contending that the parties had agreed that their costs would be paid from the estate. However, it seems clear that that comment related to the costs in the Status of Children Act proceeding, which, as the letter says, was contingent on the caveator establishing paternity in that proceeding.

[14]              In the end, it appears to me that there was never a meeting of minds by these two parties as to how costs in this proceeding should be dealt with.

[15]In the absence of agreement as to that, general principles apply.

[16]              As I have already said the view I take is that the caveator as the successful party is prima facie entitled to a costs award. I agree that it is appropriate that his costs be paid out of the estate. The caveator accepts that the applicant’s costs too should be paid from the estate, and that appears to me to be the course that would do substantial justice between the parties.

[17]              Both parties will have their costs from the estate on a 2B basis. Both have provided schedules of their costs, and neither counsel challenges the calculations involved.

[18]              I make costs awards in favour of both parties in the sums set out in the schedules to counsel’s submissions dated 11 and 23 February 2022.

Associate Judge Johnston

Solicitors:

Wynn Williams, Christchurch for applicant Dew & Company, Blenheim for caveator