Tang v Collins - [2014] NZHC 1605

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2013-441-345 [2014] NZHC 1605

BETWEEN
HONG KHAM TANG

Plaintiff

AND

PAUL NORMAN COLLINS First Defendant

HONG KEO TANG AND AMALIA ASAYAS TANG

Second Defendants

Hearing: On the papers

Counsel:

M J Wenley for Plaintiff
H M McKee for First Defendant
D O'Connor for Second Defendants

Judgment:

9 July 2014

JUDGMENT OF BROWN J [As to Costs]

This judgment was delivered by me on 9 July 2014 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Willis Toomey Robinson Scannell Hardy, Napier 4142
Glaister Ennor, Auckland 1140
Lunn & Associates Ltd, Napier

Counsel: David O’Connor, Napier

TANG v COLLINS [2014] NZHC 1605 [9 July 2014]

[1] In my judgment dated 15 May 20141 I found that the defendants had discharged the burden of proving affirmatively that Mr Tang Senior knew and approved the contents of his will. Consequently I dismissed the plaintiff’s application for an order recalling the grant of probate dated 1 April 2009. I gave a direction for the filing of memoranda as to costs and expressed the preliminary view that only one set of costs should be allowed, drawing attention to High Court r 14.15 which provides:

14.15 Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a) several defendants defended a proceeding separately; and

(b) it appears to the court that all or some of them could have joined in their defence

[2] The Court has received the following memoranda on costs:

(a) Memorandum of second defendants dated 22 May 2014; (b) Memorandum of first defendant dated 30 May 2014;
(c) Memorandum of plaintiff dated 11 June 2014;

(d) Memorandum of second defendants in reply dated 16 June 2014; and

(e) Memorandum of first defendant in reply dated 16 June 2014.

[3] The defendants submit that r 14.15 does not apply in the circumstances of this case primarily on the ground that there was a potential conflict of interest between the first defendant and the second defendants. Attention is drawn to the decisions in Jordan v O’Sullivan (No 2),2 Apatu v Apatu3 and Re Blue Chip New Zealand Ltd (in liq).4 The defendants argue that the case run by the plaintiff,
including the contention that the process for taking instructions for and arranging

1 [2014] NZHC 1011.
2      Jordan v O’Sullivan (No 2) HC Wellington CIV-2004-485-2611, 1 May 2009.
3      Apatu v Apatu HC Napier CIV-2007-441-823, 3 November 2011.
4      Re Blue Chip New Zealand Ltd (in liq) HC Auckland CIV-2009-404-1511, 3 May 2011.

execution of the will was “inherently unsatisfactory”, resulted in the interests of the first defendant and second defendants being potentially in conflict. It is also said that the second defendants’ interest in opposing the application was proprietary (in that they stood to lose the benefit of the gift to them under the will) whereas…

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 Tang v Collins

Details

AGLC: Tang v Collins [2014] NZHC 1605
Case: [2014] NZHC 1605
Decision Date: 9 July 2014

CaseChat Overview and Summary

The High Court of New Zealand, in Napier, heard the case of Tang v Collins, where Hong Kham Tang, the plaintiff, sought to recall the grant of probate of his father's will. The first defendant, Paul Norman Collins, and the second defendants, Hong Keo Tang and Amalia Asayas Tang, opposed the application. The plaintiff argued that his father did not understand the contents of his will, while the defendants maintained that the father knew and approved the will's contents. The court was required to determine whether the defendants had discharged the burden of proving that the testator knew and approved the contents of his will and whether the plaintiff's application for recalling the grant of probate should be dismissed. Additionally, the court had to decide on the costs associated with the case, considering the separate representation of the defendants.

The court found that the defendants had proven that the testator knew and approved the contents of his will, and therefore dismissed the plaintiff's application for recalling the grant of probate. The court further considered the issue of costs, applying High Court rule 14.15, which generally limits the allowance of more than one set of costs when defendants defend a proceeding separately and could have joined in their defence. The court recognised a potential conflict of interest between the first defendant and the second defendants, which might have justified separate representation. However, the court also noted that the plaintiff's originating application and the evidence presented went beyond the narrow scope initially claimed by the plaintiff's counsel. As a result, the court concluded that separate representation was appropriate in this case.

The court approved the costs sought by the first defendant in the sum of $10,945 with disbursements of $1,467. For the second defendants, the court approved their costs, excluding one item, in the sum of $12,537 with disbursements of $3,616.66. The court did not reduce the allocation of time for the purposes of item 42 of Schedule 3, considering the range of matters on which only the second defendants were able to respond.

In summary, the court dismissed the plaintiff's application for recalling the grant of probate and approved the costs sought by the defendants, taking into account the separate representation and the nature of the evidence presented.

Orders