Taylor v Da Silva

[2022] NZHC 2914

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-479

[2022] NZHC 2914

BETWEEN

ELIZABETH CORNELIA TAYLOR

Applicant

AND

GARTH JOHN DA SILVA

Respondent

On the papers:
Counsel:	B J Williams for Applicant N P Tetzlaff for Respondent
Judgment:	8 November 2022

JUDGMENT OF CHURCHMAN J

[Costs]

[1]        The remaining issue in this proceeding is costs, the substantive dispute regarding the administration of the estate, having been resolved between the parties.

[2]The applicant, Ms Taylor seeks:

(a)that the respondent pay the applicant increased costs of $8,604.00 being scale costs of $5,736, with a 50 per cent uplift, and disbursements of

$540; and

(b)reimbursement from the estate for the remainder of her actual and reasonable costs incurred by her in relation to her application totalling

$9,871.

[3]        Counsel for Ms Taylor, Mr Williams, submits that Ms Taylor was successful in her application to have the executors replaced, and that the application was made

TAYLOR v DA SILVA (COSTS) [2022] NZHC 2914 [8 November 2022]

properly because the relationship between her and Mr da Silva had broken down. He says that Mr da Silva was informed of Ms Taylor’s intention to file the application multiple times, and that he took no action in response. He considers the costs award should be met by Mr da Silva in light of his actions being the substantial cause of the proceedings.

[4]        Mr Williams submits that Ms Taylor has incurred costs her capacity as executor in bringing the proceedings and is entitled to be reimbursed from the estate for the balance. He says the estate should not be burdened by Mr da Silva’s costs because he did not act properly or reasonably. He says that two of the residuary beneficiaries of the estate agree with the proposal.

[5]Mr da Silva opposes Ms Taylor’s application. He says that:

(a)costs should lie where they fall; or

(b)the estate should pay costs and disbursements to him alone (or to both parties) on a 2B basis, with  $6,276  to  Ms  Taylor,  and  $5,846  to Mr da Silva.

[6]        Counsel for Mr da Silva, Mr Tetzlaff, rejects any submission that Mr da Silva acted improperly or unreasonably. He says that Mr da Silva wished to avoid the costs of a third party administrator and believed that the disputes between the executors were capable of being resolved informally.

[7]        He says that is why he did not resign as an executor prior to the filing of proceedings. He says that once proceeding were filed, the least costly option was to consent to the application, and that Mr da Silva retains the belief that the parties should have been able to resolve the dispute informally.

[8]        Mr Tetzlaff submits that Mr da Silva promptly consented to the orders sought, excluding as to costs. He says that Mr da Silva’s conduct has not increased costs after the proceedings were filed. He submits that Mr da Silva acted reasonably in refusing to agree to replacement of the executors prior to proceedings being brought, given the

costs to the estate of a professional administrator, and his belief that the executors could resolve their disagreement. He says that there is no wider public interest in the proceedings.

[9]        Mr Tetzlaff submits that generally in estate litigation a party acting with “sufficient and reasonable grounds” to pursue the litigation may be paid their costs from the estate.1 However, Mr Tetzlaff submits that neither Mr da Silva nor Ms Taylor are a party to the proceedings in their capacity as executors of the estate, as they are only named personally.

[10]      He says therefore that technically the estate is not a formal party to the proceedings, and that it would therefore be inappropriate to award costs against the estate, without written consent from all residual beneficiaries. Nevertheless, he submits that as he has acted reasonably and is an executor, that Mr da Silva’s costs should be paid from the estate.

Discussion

[11]      Despite the substantive dispute having been determined, the parties are still at odds over the matters that led to proceedings being filed. An application for costs is not the appropriate forum for factual findings on matters which the parties substantially differ. As previously noted by Whata J, that would effectively involve the litigation of matters resolved by consent, and be a wasteful use of the parties’ resources and the Court’s time.2

[12]      In my view, the Ms Taylor acted reasonably for the benefit for the estate, and is therefore entitled to her reasonable costs out of the estate, notwithstanding that the estate has not been formally added as a party.3    However, I am not satisfied that    Mr da Silva has acted so unreasonably so as to justify an award of increased costs. For all intents and purposes, after resiling from the belief that the matter could be resolved informally, Mr da Silva responsibly consented to the orders being made.

1      Loosley v Powell [2018] NZCA 73 at [6]–[9].

2      Shrimpton v Freeman [2021] NZHC 865 at [6].

3      At [4]; citing Loosley v Powell [2018] 2 NZLR 618 (CA).

Rule 14.6(3)(c) does not apply where proceedings only concern private interests.4 Nor am I satisfied that Mr da Silva acted so as to justify an award of increased costs pursuant to r 14.6(3)(b)(v).

[13]      Finally, it is correct that as the unsuccessful party, Ms Taylor is entitled to a contribution to her costs by Mr da Silva.5 An award of scale costs in this proceeding amounts to $5,736, plus disbursements  of  $540,  as  provided  by  Mr  Williams.  Ms Taylor’s actual costs in the proceeding total $18,475. Therefore, the balance of Ms Taylor’s actual costs following the subtraction of a scale  costs  award against  Mr da Silva, is $12,199. This recalculation is required given the finding that an award of increased costs against Mr da Silva is not appropriate. Ms Taylor is entitled to have that balance paid out of the estate.

Result

[14]Ms Taylor is entitled to have her actual and reasonable costs in the sum of

$12,199 paid out of the estate. Mr da Silva is to pay costs to Ms Taylor in the sum of

$5,736 plus disbursements of $540.

Churchman J

Solicitors:

Gibson Sheat, Lower Hutt for Applicant

Smith and Partners, Auckland for Respondent

4      Mainzeal Property and Construction Ltd (in liq) v Yan (No 2) [2019] NZHC 1637 at [66].

5      High Court Rules 2016, r 14.2(1)(a).