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 notes that the applicants’ costs calculated on a 2B basis here would total $34,685.70 plus disbursements of $3813.44.  This is detailed  in  a  schedule  attached  to  her  submissions.    In  all  the  circumstances prevailing in this case however, as I have noted the applicants seek an award of costs on an indemnity basis.  Their actual legal costs in this proceeding are detailed and total $58,337.19. As an alternative to indemnity costs, if this Court is not prepared to make such an award, the applicants seek costs calculated on a category 2B basis with a significant uplift.

[11]     Rule 14.1 High Court Rules provides that all matters relating to costs in a proceeding are at the discretion of the Court.   Rule 14.2 then sets out the starting point principle regarding determination of costs that the party who fails with respect to a proceeding should pay costs to the party who succeeds.

[12]     In this case as I have noted above, indemnity costs or increased costs are sought.  Rule 14.6 High Court Rules addresses this and provides in part:

14.6     Increased costs and indemnity costs

...

(3)      The court may order a party to pay increased costs if—

...

(b)      the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)       failing to comply with these rules or with a direction of the court; or

(ii)      taking  or  pursuing  an  unnecessary  step  or  an argument that lacks merit; or

(iii)      failing,  without  reasonable  justification,  to  admit facts, evidence, documents, or accept a legal argument; or

(iv)      failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)       failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule  14.10  or  some  other  offer  to settle  or dispose of the proceeding;

...

(d)       some other reason exists which justifies the court making an order for increased costs despite the principle that the determination  of  costs  should  be  predictable  and expeditious.

(4)      The court may order a party to pay indemnity costs if—

(a)       the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

(b)       the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or

...

(f)       some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination  of  costs  should  be  predictable  and expeditious.

[13]     It is clear that the party claiming increased or indemnity costs has the onus of persuading the Court that their award is justified – Strachan v Denbigh Property Limited.1

[14]     On all of this, the applicants refer to Bradbury v Westpac Banking Corp2 where the Court of Appeal stated “increased costs may be ordered where there is failure by the paying party to act reasonably”.  In Bradbury, an appeal from a High

Court  decision  awarding  indemnity  costs  to  Westpac  of  over  $996,000  was

1      Strachan v Denbigh Property Ltd (HC) Palmerston North CIV-2010-454-232, 3 June 2011 at

[27].

2      Bradbury v Westpac Banking Corp [2009] 3 NZLR 400 (CA).

dismissed.  It sets out circumstances where indemnity costs have been ordered being situations where there are:3

(a)       The making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

(b)Particular misconduct that causes loss of time to the court and to other parties;

(c)       Commencing or continuing proceedings for other ulterior motive;

(d)      Doing so in wilful disregard of known facts or clearly established law; (e)     The making of allegations which ought never to have been made or

which unduly prolong a case by groundless contentions.

[15]     Submissions also referred to Deliu v Hong4 where applications were made by both  parties  to  strike  out  each  other’s  pleadings.    It  was  held  that  the  whole proceeding was being run simply to deliver attacks one against the other, and not to serve any useful purpose.  This was an improper use of the court process.  Reference was also made to vexatiousness in the context of Attorney-General v Brogden.5    In that case, the Court held a party’s pleadings were vexatious in a situation where they contained the following factors:

(a)       A  pattern  of  complex,  prolix  and  sometimes  incomprehensible allegations;

(b)      Extravagant claims and unfounded attacks.

The proceedings  themselves  showed  the individual  concerned    to  be  an  almost compulsive litigant against a widening circle of defendants.   The frequency with

which parts or all of a statement of claim had been struck out was noted, as was the

3 At [29].

4      Deliu v Hong [2011] NZAR 681 (HC).

5      Attorney-General v Brogden [2001] NZAR 158 (HC).

concerning  extent  to  which  the  litigant  allowed  his  proceedings  once  issued  to remain dormant.

[16]     The applicants also referred the Court to Mueller v Hendren6 where the High Court  granted  indemnity  costs  of  $37,000  plus  reasonable  disbursements  in  a situation where a caveat was lodged against the grant of probate. That amounted to a

75% uplift on costs that would have been otherwise ordered, had the 2B scale applied.   In that case, Ms Hendren had made claims under the Property (Relationships) Act 1976, the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949.  Heath J considered it a “legally unsupportable” caveat and it was therefore an appropriate case for indemnity costs to be awarded under r 14.6(a).

[17]     Ms Ling also set out the applicants’ position in relation to any award of costs here, which she indicated should be given against the respondent Ms Hargreaves only.   In addition, it was noted that any award of costs less than indemnity costs would effectively mean that in any event any excess costs would fall on the estate and necessarily be met equally by the respondent and Mrs Sidey as 50/50 residuary beneficiaries.

[18]     Ms Ling submitted this was an appropriate case for an award of indemnity costs for a variety of reasons.  This included her contention that the proceeding was frivolous and vexatious and that the cost of the proceeding was out of all proportion to  what  Ms  Hargreaves  would  achieve  if  successful.    On  this,  Ms  Ling  noted Ms Hargreaves’ comment  that  she  intended  to  challenge  not  only  her  mother’s present will but a number of previous wills as well, if she was successful in these proceedings.   Ms Ling suggested that Ms Hargreaves had shown herself to be an almost compulsive litigant against a widening circle of parties, with a number of people accused of misleading or obstructing the Court in the course of this proceeding.   All this involved Ms Hargreaves making extravagant claims and unfounded attacks.  In addition, Ms Ling submitted that in the past Ms Hargreaves had the respondent simply ignored decisions and directions of the Court refusing her

many applications, and simply filed further applications for precisely the same matters.

[19]     If the Court was not minded to award indemnity costs, the applicants here sought an award of increased costs.  It was said that Ms Hargreaves had contributed unnecessarily to the time and expense of these proceedings by making claims and pursuing arguments that lacked merit.   These included her undue influence claim which was entirely unsubstantiated, and her arguments regarding the management of her mother’s affairs by her brother as her attorney and others, which Ms Hargreaves was told repeatedly were irrelevant here.  With all this in mind, Ms Ling submitted that the case was similar to that of Mueller v Hendren in which, as I have noted, indemnity costs amounting to what would have been a 75% uplift on 2B scale costs, were ordered.

[20]     Ms Ling in her submissions also referred to comments in Aplin v Lagin7 where  Fisher  J  stated  “an  unrepresented  party  should  not  be  penalised  on  that account alone, but if the result has been to throw an extra burden of legal cost upon the represented party, there is no reason why some recognition should not be given to that.” Here, Ms Hargreaves is a self-represented litigant.  Ms Ling submitted that the Court should not be tempted here to  reduce any proper award of costs, simply because Ms Hargreaves is a lay litigant. Amongst    the  reasons  for  this  approach here, Ms Ling noted that the Court tried to warn and guide Ms Hargreaves on several occasions in relation to this proceeding.  But, this assistance was steadfastly rejected by her.  An amicus was appointed to assist Ms Hargreaves so she would have the benefit of some legal assistance but it is clear from subsequent events that she chose to ignore this.   In addition, Ms Hargreaves was told the likely outcome of the proceeding and her potential liability for costs, and yet she chose to press on it seems on a “point of principle”.

Mrs Sidey’s submissions on costs

[21]     Mrs Sidey in turn sought two directions from the Court here with respect to

costs.  The first was that the half share of the deceased’s estate that is to vest in her,

should not in any way be diminished by the costs incurred by the applicants in this proceeding or by the costs of counsel appointed to assist.  The intent of this is that costs incurred by the estate in this proceeding should be deducted only from the half share that Ms Hargreaves is to inherit.  The second direction sought by Mrs Sidey is a costs  award in  her favour against  Ms  Hargreaves  for the legal  costs  she has incurred in this whole matter.

[22]     Mrs Sidey’s involvement here involved filing a notice of support for the applicants as trustees of the estate in the application for a grant of probate and a consequential order that Ms Hargreaves’ caveat be discharged.   As a party to the proceeding, Mrs Sidey received service of all documents and was represented by counsel at preliminary conferences, but she took no part in the final hearing of the matter.

[23]     Counsel for Mrs Sidey, Ms Hambleton, noted the proposition that, where proceedings have been made unnecessarily complex, or unduly protracted, then the party responsible should at least bear costs to the extent that their conduct has contributed to the overall expense: Belling v Belling.8   Ms Hambleton suggested here that there was no reasonable basis for Ms Hargreaves either to lodge the caveat against the granting of probate, or to oppose the applicants seeking to have that

caveat discharged.

[24]     She noted also that this proceeding had been called before this Court on numerous occasions where repeated reminders were given to Ms Hargreaves of the focus of the proceeding.   All these reminders were ignored.   There were also a number of entirely unnecessary interlocutory applications filed by Ms Hargreaves during the proceeding, but despite clear warnings from the Court, Ms Hargreaves continued to file further applications and to try to place information before the Court that was entirely irrelevant.

[25]     In that Ms Hargreaves had made this whole matter more complex than was necessary, and taken unsuccessful procedural steps that both delayed resolution and used the estate’s resources, Ms Hambleton submitted that this was just the sort of

conduct  intended  to  be  seen  as  relevant  in  any  consideration  of  an  award  of indemnity costs under r 14.6(4).

[26]     She notes also that Mrs Sidey was very clear in her concerns about costs when she filed her notice of support.  Ms Hambleton states that Mrs Sidey supported the applicant trustees entirely, she considered the claims made by Ms Hargreaves to be unmeritorious, and she was concerned throughout particularly at any diminishing in the value of the estate that might occur simply because of those claims by her sister.

[27]     It is therefore Mrs Sidey’s position first, that it would be fair and reasonable for there to be a contribution towards her own legal costs here and thus to make an award of these costs against Ms Hargreaves personally.  Secondly, she contends also that the costs incurred both by the estate and in relation to the appointment of counsel to assist should be deducted only from the half share of the estate due to Ms Hargreaves.  This would ensure that Mrs Sidey’s half share of the estate is not diminished by costs incurred she says as a result of her sister’s unreasonable stance in opposing and perpetuating this proceeding.

[28]     The  actual  costs  that  Mrs  Sidey  has  incurred  here  are   $1679  plus disbursements of $92.78 making a total of   $1771.78.  These are sought from Ms Hargreaves on an indemnity basis, given Mrs Sidey’s limited involvement here and all the matters her counsel has referred to, noted above.

Amicus’ submission on costs

[29]     On 29 May 2013, Ms Robertson was appointed as amicus in this proceeding to assist the Court.   Later, counsel’s role was extended at her request, to include exploring the possibility of settlement, but no settlement was achieved.

[30]     Ms Robertson’s remuneration here is to be based on a senior counsel rate under the Crown Solicitors Regulations 1994.  Her costs on this basis total $13,496 with disbursements of $430.  An appropriate schedule, itemising these costs and all attendances  in  detail,  is  attached  to  Ms  Robertson’s  submissions.     In  these

submissions she also mentions that her role as amicus was significantly constrained in this case here by Ms Hargreaves’ unwillingness to co-operate in any way with Ms Robertson,  evidenced  finally  by  Ms  Hargreaves’  application  to  have  her removed.

[31]     Ms Robertson’s submissions on costs here raise two principal points.   The first is that her reasonably incurred costs in this proceeding should be met on an indemnity basis.  In the second, she suggests that the Court in its discretion should consider directing that those costs, along with the applicants’ costs, might be met in part from the estate and in part from Ms Hargreave’s entitlement as a residuary beneficiary in the estate.

[32]     As to the first issue, raised by Ms Robertson, I accept that the costs incurred by her as amicus have been properly charged and at an appropriate rate and that these should be met on an indemnity basis.   No objection or comment was raised with respect to these aspects by the applicants, Ms Hargreaves or Mrs Sidey here.

[33]     As to the second issue Ms Robertson’s grounds for suggesting that her costs and the costs of the applicants might be met in part from the estate and in part from Ms Hargreaves directly, as I understand it, are as follows:

(a)      At the heart of Ms Hargreaves’ opposition to the probate application was a challenge to her mother’s testamentary capacity to make her November 2007 will.

(b)Ms Hargreaves, as one of the deceased’s daughters, had personal knowledge of her mother’s development of progressive vascular dementia from about 2004 onwards.

(c)      The deceased’s long time general practitioner was prepared to provide evidence of her confusion,  memory loss,  and  deteriorating mental condition from about 2004.

(d)A family friend and neighbour, a nurse with particular experience in elder health issues also provided some evidence of mental decline and the deceased’s memory loss at times as early as 2004.

(e)      The fact that, should Ms Hargreaves have been successful here, the effect of the remedy was of limited benefit to her does not preclude her right to seek the Court’s finding on this issue of testamentary capacity.

(f)      Notwithstanding  any  of  this,  there  was  however  absolutely  no evidence of any cogency to support Ms Hargreaves’ other claim that the deceased was subject to undue influence of any kind when she made her November 2007 will.

(g)And  throughout,  it  is  beyond  question  in  this  proceeding  that Ms Hargreaves  has  pursued  numerous  unmeritorious  interlocutory applications, in the main, involving completely irrelevant matters.  In addition,  despite  clear  advice  and  warnings  from  the  Court  and counsel  on  a number of occasions  as  to  the limited scope of the hearing, the possible costs compensation that would be likely to flow against  Ms Hargreaves  of  pursuing  her  opposition  to  the  probate application, and the increased costs and delays she could suffer by doing so, Ms Hargreaves chose to persist.

[34]     As will appear later in this judgment, in my view there is merit in these arguments advanced by Ms Robertson on this second issue

Ms Hargreaves’ submissions on costs

[35] As I have noted at [6] above, Ms Hargreaves purported to file submissions on costs on 23 October 2013 under a document headed “Application Opposing Award of Costs to the Trustees, Ms Robertson and Diana Sidey...” Despite this title, as best I can tell from all the material which Ms Hargreaves has filed, which included an unsigned supporting affidavit, little by way of relevant argument was advanced by her on this question of costs.

[36]     Instead, it seems that Ms Hargreaves has chosen once again to repeat many of the arguments she endeavoured to raise at and before the substantive hearing, in particular voicing her concerns over the administration of her late mother’s affairs prior to her death.  None of this, of course, has relevance here.

[37]     Nor, in her submissions, has Ms Hargreaves in any way addressed any of the costs matters raised by other counsel, or voiced any concerns regarding the level of costs which are sought.

[38]     Notwithstanding this, I now turn to consider the various costs applications which are before the Court.

The costs approach to be adopted here and my decision

[39]     As noted at the outset of this judgment at [4], I indicated in my substantive judgment in this proceeding, that the applicants having been successful  in their application, they were clearly entitled to an award of costs.  In addition, for all the reasons  I  have  outlined  above,  and,  without  any  real  cogent  argument  being advanced in opposition by Ms Hargreaves or others, I find also that the amicus, Ms Robertson, and Mrs Sidey are also entitled to awards of costs here.

[40]     I turn now to consider first the quantum of the awards to be made, and secondly, who is to bear liability for the awards.

Quantum

[41]     As  to  the  applicants’ position  on  quantum,  in  my  view,  but  only  by  a reasonably fine margin, I find that the applicants are not entitled to an award of indemnity costs in this case.

[42]     As I see the position, the present case does not quite reach the standard set out in Mueller v Hendren for a finding that the caveat against the granting of probate was lodged for an entirely collateral purpose with what was seen as a hopeless prospect of success.   In addition, although the conduct of Ms Hargreaves in this

proceeding must be seriously questioned, I find that it falls short of flagrant misconduct as noted in Bradbury v Westpac Banking Corporation.

[43]     Notwithstanding these conclusions, I find however that the applicants are entitled  to  an  award  of  increased  costs  above  the  category  2B  scale  costs  of

$34,685.70  noted  at  [10]  above.    Those  2B  costs  and  the  steps  taken  by  the applicants they represent, are all unchallenged here.   In addition, in my view they were properly undertaken in the circumstances of this case.  And, an increased costs award in my view is justified because Ms Hargreaves in particular has in the main taken and pursued what I see as unnecessary steps and arguments lacking merit (particularly with regard to the undue influence claim) in this case.  In addition, she has clearly, without reasonable justification, failed to accept proper legal argument or to comply with requirements set out in the High Court Rules and throughout she has ignored sound directions, advice and warnings provided by the Court and counsel.

[44]     As a clear and linked result, all other parties to this litigation have been put to considerable and unnecessary expense.

[45]     And, the fact that increased costs here are justified was foreshadowed in warnings provided to Ms Hargreaves throughout this proceeding.  In particular, in a minute issued by Chisholm J in this Court on 5 December 2012 at [3], where the learned Judge advised Ms Hargreaves that matters raised in her submissions were irrelevant and her strike out application was misconceived and dismissed, concluded:

Having said that, Ms Hargreaves, I repeat what I said to you earlier.  You ought to give careful consideration to the wisdom of going any further on the treadmill.  You know only too well that Court cases are treadmills and they gobble up costs.  I am struggling to see how you are going to be any better off if you succeed in this litigation. There is a very real risk you will lose.  If that  happens  you  will  have  achieved  nothing  and  your  interest  in  your

mot her ’s   est ate   wi ll   be   reduc ed   by   cos ts   t hat   will   al most   cer t ai nl y   be

awarded against you.  (Emphasis added)

[46]     Soon  thereafter  in  a  minute  issued,  on  21  February  2013,  His  Honour

Chisholm J again noted his endeavours to assist Ms Hargreaves when he stated:

I endeavoured to explain to Mrs Hargreaves that this proceeding is very limited in scope and it only concerns whether the will dated 6 November

2007 should be admitted to probate which will probably turn on testamentary

capacity and/or undue influence.   I also endeavoured to explain this on 5

December 2012...

[47]     And again, on 29 May 2013, in a further minute issued by Chisholm J in this proceeding, he stated at [5] and [6]:

As I have endeavoured to explain to Mrs Hargreaves on a number of occasions already, the Court will only consider information that is relevant to the issues to be determined which, as I see it, are testamentary capacity and possibly undue influence.

Mrs Hargreaves will need to co-operate with Ms Robertson in achieving the foregoing.  In particular Mrs Hargreaves will need to pay close attention to Ms Robertson’s advice as to the matters that will be relevant or irrelevant at the forthcoming hearing.

Clearly from Ms Robertson’s own submissions noted at [30] above Ms Hargreaves flagrantly chose not to co-operate with Ms Robertson here.

[48]     Given these aspects, I find that the applicants here are entitled to an award of category 2B scale costs together with an uplift of 50% which I consider to be an appropriate percentage uplift in all the circumstances here.   On category 2B scale costs amounting to $34,685.70, an uplift amounting to $17,342.85 is now made. This brings the total for the applicants’ costs to $52,028.55.  An order regarding this amount is to follow.  And, as to the applicants’ claim for disbursements of $3813.44 no questions of any kind were raised.  As I see it, these too are appropriate here.  An order for these disbursements is also to follow.

[49]     Next, turning to the costs of Ms Robertson here, again as I note above, no question of any kind has been raised concerning the $13,496.00 quantum of these costs indicated by her.

[50]     Clearly the work involving Ms Robertson as amicus in this case was difficult in all the circumstances I have outlined above, and I am satisfied that the level of costs she seeks under the Crown Solicitor’s Regulations 1994 scale on an indemnity basis is appropriate here.

[51]     An   order   regarding   Ms   Robertson’s   costs   of   $13,496.00,   and   her unchallenged  disbursements  of  $430.00,  which  I  also  find  to  be  appropriately charged here, is to follow.

[52]     So far as the costs of Mrs Sidey are concerned, again in my view the decision to award these and the quantum sought has not in any real way been questioned by Ms Hargreaves or any other party to this proceeding.

[53]     I find that the costs sought by Mrs Sidey, who is truly an innocent party in this proceeding, are properly sought and that these should be met on an indemnity basis, given particularly their level.   An award of costs of $1679.00 plus disbursements of $92.78 as sought is to be made in Mrs Sidey’s favour.

Liability for costs

[54]     The last issue remaining is the question who is to be ordered to pay these costs.

[55] As I have noted at [33] above, Ms Robertson has set out what I see as significant reasons why an element of the costs to be paid in this proceeding should be met by the estate. This is because it is not really questioned that the deceased, Mrs Austin, did suffer from a degree of dementia from about 2004 onwards. That said, Ms Hargreaves at the outset may not have acted unreasonably in raising certain questions as to her testamentary capacity in completing her 2007 will.

[56]     The degree to which this challenge was pursued by Ms Hargreaves however, and her actions throughout this whole proceeding, not to mention her completely unsupported claim that the will was tainted with undue influence, must mean in my view that the bulk of the costs here should be met by her personally.

[57]     Under all the circumstances in this case an appropriate allowance for costs to be met by the estate (and therefore half of which would fall on Mrs Sidey and half on Ms Hargreaves as residuary beneficiaries) as I see it would be $10,000.  An order that a $10,000 portion of the costs to be awarded to the applicants is to be paid by the estate is to follow.   The remaining costs due to the applicants and the costs to be

awarded to both Ms Robertson and Mrs Sidey are to be met by Ms Hargreaves by way of deduction from her one-half share in the residuary estate.

Orders

[58]     I now order therefore as follows:

(a)      The applicants in this proceeding are entitled to an award of costs calculated  on  a  category  2B  basis  with  a  50%  uplift  totalling

$52,028.55,  together  with  an  amount  for  disbursements  totalling

$3813.44.  This total sum for costs and disbursements of $55,841.99 is to be paid to the applicants as to $10,000 by the estate of the late Margaret Ruth Austin and as to $45,841.99 by the respondent, Ms Hargreaves, personally.

(b)The amicus in this proceeding, Ms Robertson, is entitled to an award of costs calculated on an indemnity basis totalling $13,496 together with disbursements of $430.00.   This total sum for costs and disbursements  of  $13,926.00  is  to  be  paid  by  the  respondent, Ms Hargreaves, personally.

(c)      Diana Margaret Sidey (Mrs Sidey) is entitled to an award of costs in this proceeding calculated on an indemnity basis totalling $1679.00 together with disbursements totalling $92.78.  This total sum for costs and disbursements of $1771.78 is to be paid to Mrs Sidey by her sister, the respondent, Mrs Hargreaves, personally.

(d)I direct now that the payments outlined in this paragraph at (a), (b) and   (c)   above,   which   are   to   be   made   by   the   respondent, Ms Hargreaves personally, are to be deducted and paid from her share as a residuary beneficiary in the estate of the late Margaret Ruth Austin.

...................................................

D Gendall J

Solicitors:

Goodman Tavendale Reid for Applicants

Gallaway Cook Allan for Mrs Sidey, a non party