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…