Swenson v Lawton

[2023] NZHC 1567

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2021-454-10

[2023] NZHC 1567

IN THE MATTER

of the Estate of Trudy Anne Lawton

UNDER

the enforcement of section 21A Property (Relationships) Act 1976 agreement

BETWEEN

KAREN SWENSON AND

ANTHONY HARVEY SWENSON
Plaintiffs

AND

GRANT MATTHEW LAWTON

Defendant

CIV-2021-454-10

IN THE MATTER

of the Estate of Trudy Anne Lawton

UNDER

the Family Protection Act 1955

BETWEEN

GRANT MATTHEW LAWTON

Plaintiff

AND

KAREN IVY SWENSON AND ANTHONY HARVEY SWENSON

Defendants

CIV-2021-454-42

IN THE MATTER

of the Estate of Trudy Anne Lawton

UNDER

the Property (Relationships) Act 1976

BETWEEN

GRANT MATTHEW LAWTON

Plaintiff

AND

KAREN IVY SWENSON AND ANTHONY HARVEY SWENSON

Defendants

SWENSON v LAWTON [2023] NZHC 1567 [22 June 2023]

Hearing:	On the Papers
Counsel:	G P Mason for Mr and Mrs Swenson G A Paine for Mr Lawton
Judgment:	22 June 2023

JUDGMENT (No 3) OF ISAC J

[Costs]

Introduction

[1]    These proceedings involve three interconnected proceedings concerning the estate of the late Ms Trudy Lawton. They centre on a relationship property agreement between Trudy and her former partner, Mr Grant Lawton. The background to the proceedings is set out in detail in two earlier judgments referred to below. The following is a brief summary.

[2]    In a judgment of 19 December 2022, I refused Mr Lawton’s application to have the relationship property agreement set aside, and ordered him to pay half of the proceeds of Trudy’s life insurance policy to her estate in accordance with the agreement.1 I also rejected Mr Lawton’s claim for maintenance under the Family Protection Act 1955.

[3]    The executors subsequently sought solicitor-client costs across the three proceedings of approximately $99,000. In a judgment of 30 March 2023, I held that Mr Lawton was liable—in accordance with an indemnity clause in the agreement—to pay to the executors:2

(a)the executors’ reasonable solicitor-client costs incurred in enforcing Mr Lawton’s obligations under the agreement (CIV-2021-454-10);

(b)scale costs on a 2B basis in relation to the other two proceedings (CIV-2021-454-35 and CIV-2021-454-42); and

(c)the executors’ reasonable disbursements as fixed by the Registrar.

1      Swenson v Lawton [2022] NZHC 3544.

2      Swenson v Lawton [2023] NZHC 687 at [25].

[4]    However, given the intermingled nature of the three proceedings, I was unable to determine costs subject to the indemnity. As such, I directed the parties to endeavour to resolve the question of costs between themselves in accordance with my judgment. They have been unable to do so, and have filed memoranda for the Court to determine the issue on the papers.

The executors’ revised costs claim

[5]    The executors seek an order for $75,295.70, being $62,237.50 in legal costs and $13,058.20 of disbursements.

[6]    Despite my direction that the executors are entitled to the actual and reasonable costs incurred in the enforcement proceedings, they effectively seek scale costs on a 2B basis across all three proceedings of $54,372.50. The exception is that they also seek to recover their actual solicitor client costs in commencing the enforcement proceeding, to the extent not reflected by the scale. The further indemnity costs sought amount to $7,865.

[7]    I consider that the executors’ claim for indemnity costs is reasonable given the size, nature and complexity of the proceedings. Indeed, the case involved three separate proceedings being managed together which suggests the costs scale is (to an even greater degree than usual) unlikely to adequately reflect the work required for each step. That will certainly be the case in relation to the preparation of the electronic bundle which the executors undertook at a late stage.

[8]    The executors’ approach to costs is simple, pragmatic and, on any view, highly favourable to Mr Lawton, given my previous costs judgment indicated an entitlement to indemnity costs for the entirety of the enforcement proceeding.  I do not accept  Mr Paine’s submission that a review of the “time records” is required to determine whether the indemnity costs sought are reasonable.

[9]    Likewise, I consider that the disbursements claimed are reasonable. I award them accordingly. I do not accept Mr Paine’s objections to the costs sought in relation to Mrs Key’s attendances.

Conclusion

[10]The executors’ claim for costs is allowed.

[11]Mr Lawton is to pay the executors costs of $62,237.50 plus disbursements of

$13,058.20.

Isac J

Solicitors

Paul Lyall Barrister & Solicitor, Palmerston North for Executors Fitzherbert Rowe, Palmerston North for Mr Lawton