Tavendale v Hargreaves - [2013] NZHC 2990

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-001081 [2013] NZHC 2990

BETWEEN MARK JONATHAN TAVENDALE AND EUAN BOYD LINDSAY HILSON Applicants

ANDPENELOPE ANN HARGREAVES Respondent

Hearing: Dealt with on the papers

Judgment: 12 November 2013

JUDGMENT OF D GENDALL J AS TO COSTS

Background

[1] This judgment relates to a costs award in this proceeding following my earlier judgment given on 11 September 2013.

[2] In that earlier judgment, despite the opposition of the respondent, Penelope Ann Hargreaves (Ms Hargreaves), I granted the application by the applicants pursuant to s 61(d)(i) Administration Act 1969 that the order nisi granting probate of a November 2007 will of Margaret Ruth Austin (the deceased) be made absolute. Ms Hargreaves had lodged a caveat with respect to this probate and a further order was made discharging that caveat.

[3] The grounds advanced by Ms Hargreaves in her unsuccessful attempt to oppose the making of the order nisi absolute were:

(a) That the deceased (her mother) lacked testamentary capacity at the time of signing the November 2007 will; and

TAVENDALE v HARGREAVES [2013] NZHC 2990 [12 November 2013]

(b)That the respondent’s brother (the deceased’s son), Mr John Austin, and the applicants exerted undue influence over the deceased when she made that November 2007 will.

[4] In my 11 September 2013 judgment, I indicated at paragraph [60] that as the applicants had been successful, they were clearly entitled to an award of costs. I went on to note, however, that there were no specific submissions advanced to me on the question of costs and I made certain directions regarding the filing of memoranda on the issue.

[5] Since that time, counsel for the applicants has filed a memorandum on costs dated 25 September 2013, counsel who was appointed to assist the Court in this matter, Penelope Robertson (Ms Robertson), has filed her memorandum on costs also dated 25 September 2013, and counsel for Diana Margaret Sidey (Mrs Sidey) who is Ms Hargreaves’ sister, has filed a memorandum on costs also dated
25 September 2013.

[6] Following an extension of time I granted for her to do so, on 23 October 2013

Ms Hargreaves filed a series of documents including one entitled “Application Opposing Award of Costs to the Trustees, Ms Robertson and Diana Sidey...” and what is said to be a supporting affidavit (unsigned), which I have taken as her submissions on this costs issue.

[7] I have had an opportunity to consider all those memoranda and now give my decision on the costs question.

[8] In doing so, I note at the outset the comment in my earlier 11 September 2013 judgment referred to at [4] above that the applicants have been entirely successful with their application and are entitled to an award of costs.

Applicant’s Position on costs

[9] Ms Ling for the applicants indicated that the applicants seek an award of significant costs against Ms Hargreaves here, ideally calculated on an indemnity costs basis.

[10] In her costs memorandum, Ms Ling…

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 Tavendale v Hargreaves

Details

AGLC: Tavendale v Hargreaves [2013] NZHC 2990
Case: [2013] NZHC 2990
Decision Date: 12 November 2013

CaseChat Overview and Summary

This case involves a dispute over the granting of probate of a will, specifically the November 2007 will of Margaret Ruth Austin. The applicants, Mark Jonathan Tavendale and Euan Boyd Lindsay Hilson, sought to have the order nisi granting probate made absolute. The respondent, Penelope Ann Hargreaves, opposed the application on the grounds that her mother lacked testamentary capacity and that there was undue influence exerted on her mother by Mr John Austin and the applicants. The applicants were successful in their application, and the court was required to determine the appropriate costs to be awarded.

The primary legal issues the court needed to decide were whether the applicants were entitled to an award of costs, and if so, on what basis and in what amount. The court also needed to determine who should bear the liability for these costs. The applicants sought an award of significant costs, ideally on an indemnity basis. They argued that the respondent's opposition to the grant of probate was frivolous, vexatious, and without merit, and that her conduct had unnecessarily contributed to the time and expense of the proceeding. The respondent did not provide any cogent argument in opposition to the award of costs.

The court found that the applicants were entitled to an award of increased costs, not indemnity costs, as their opposition, while lacking merit, did not reach the level of flagrant misconduct required for indemnity costs. The court determined that a 50% uplift on the category 2B scale costs was appropriate, bringing the total for the applicants' costs to $52,028.55. The costs of the amicus, Ms Robertson, and Mrs Sidey were also awarded on an indemnity basis, as their involvement in the proceeding was limited and their costs were reasonable. The court ordered that $10,000 of the applicants' costs and the costs of Ms Robertson and Mrs Sidey were to be paid by the estate, while the remaining costs were to be met by the respondent, Ms Hargreaves, personally.

Orders