Swenson v Lawton - [2023] NZHC 687

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 687

IN THE MATTER of the Estate of Trudy Anne Lawton

UNDER

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

BETWEEN

KAREN SWENSON AND

ANTHONY HARVEY SWENSON
Plaintiffs

AND

GRANT MATTHEW LAWTON

Defendant

CIV-2021-454-35

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 687 [30 March 2023]

Hearing: On the Papers

Counsel:

G P Mason for Mr and Mrs Swenson G A Paine for Mr Lawton

Judgment:

30 March 2023

JUDGMENT OF ISAC J

[Costs]

Introduction

[1] This proceeding (really a combination of three related proceedings) concerned the estate of the Ms Trudy Lawton. At its centre was a relationship property agreement between Trudy and Mr Grant Lawton under which Grant had promised to pay to Trudy’s estate half of the proceeds of her life insurance policy. When Trudy died, Mr Lawton refused to pay Trudy’s share of the insurance proceeds to the executors, Mr and Mrs Swenson. As a result, they applied to the Court to enforce the agreement. In response, Mr Lawton sought to have the agreement set aside. In addition, he sought maintenance from Trudy’s estate under the Family Protection Act 1955.

[2] In a judgment of 19 December 2022, I determined all of the issues in favour of the executors and ordered Mr Lawton to pay half of the insurance proceeds together with interest.1 On the matter of costs, I observed:2
… Mr Lawton would also appear to be liable for the executors’ reasonable solicitor-client costs pursuant to cl 2.15 of the agreement. If costs cannot be settled between the parties, memoranda may be filed and I will determine the issue on the papers.

[3] The executors now seek solicitor and client costs in the sum of $99,150.14 (including disbursements of $10,109.45).

[4]Mr Paine’s submissions in reply were brief:

Notwithstanding the somewhat peculiar wording in the Agreement, if Mr Lawton has a liability to make payment of the estate costs, then he requests

1 Swenson v Lawton [2022] NZHC 3544.
2 At [71].

that the accounts be referred to the New Zealand Law Society for a cost revision.

He requests that the court direct that the accounts be forwarded to a cost reviewer nominated by the New Zealand Law Society so that if he has any liability, the amount to be paid will be deemed to be fair and take into account the principles in Chapter 9 of the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008.

[5]Mr Paine did not otherwise challenge the reasonableness of the costs claimed.

Costs…

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.

Continue reading Swenson v Lawton

Details

AGLC: Swenson v Lawton [2023] NZHC 687
Case: [2023] NZHC 687
Decision Date: 30 March 2023

CaseChat Overview and Summary

The High Court of New Zealand heard a case involving three consolidated proceedings related to the estate of Trudy Lawton. The central dispute was over a relationship property agreement between Trudy Lawton and Grant Lawton, under which Grant was to pay Trudy's estate half of the proceeds from her life insurance policy. When Trudy died, Grant refused to pay the agreed amount to the estate's executors, Karen and Anthony Swenson, leading to the executors' application to enforce the agreement. In response, Grant sought to have the agreement set aside and claimed maintenance from Trudy's estate under the Family Protection Act 1955. The court was required to decide whether Grant was liable to pay the executors' legal costs, which they claimed to be $99,150.14, including disbursements.

The court first addressed the issue of whether it had the power to refer the executors' costs for review. The Court of Appeal in Black v ASB Bank Ltd outlined three options for a liable party seeking a detailed vetting of costs, none of which allowed the court to order a review. The court also considered whether the agreement provided a right to recover indemnity costs. Clause 2.15 of the agreement clearly conferred on the executors a right to indemnity costs arising from Grant's failure to maintain his obligations, including the financial costs incurred in enforcing his obligations. The court found that the executors were entitled to indemnity costs for enforcing Grant's obligations under the agreement, and scale costs for the other proceedings.

The court concluded that Grant was liable to pay the executors' reasonable solicitor-client costs incurred in enforcing his obligations under the agreement, scale costs for the other two proceedings, and their reasonable disbursements. The court reserved leave to apply for further orders if the parties could not resolve the costs issue within 20 working days of the judgment date.

Orders