Van Goch v Van Goch

Case [2019] NZHC 2978


IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-404-001946

[2019] NZHC 2978

BETWEEN

SANDRA PETRONELLA VAN GOCH

Plaintiff

AND

JOHANNES MARINUS VAN GOCH as

executor of the estate of Maria Martina van Goch

First Defendant

AND

HELEN WILHELMINA CATHERINA VAN

GOCH as executor of the estate of Maria Martina van Goch

Second Defendant

AND

SANDRA PETRONELLA VAN GOCH as

executor of the estate of Maria Martina van Goch

Third Defendant

AND

CHARLES GRAHAM MILLER

Fourth Defendant

Hearing: (On the papers)

Counsel:

S Grant and S Laing for the Plaintiff and Third Defendant T Stapleton QC for the First and Second Defendant

B Cuff and R Thompson for the Fourth Defendant

Judgment:

14 November 2019


[COSTS] JUDGMENT OF MOORE J


This judgment was delivered by me on 14 November 2019 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

VAN GOCH v VAN GOCH & ORS [2019] NZHC 2978 [14 November 2019]

Introduction

[1]                  This matter concerns the estate of Maria van Goch (“Maria”). She died in September 2016. The plaintiff, Sandra van Goch (“Sandra”), the first defendant Johannes van Goch (“John”), and the second defendant Helen van Goch (“Helen”) are the three children of Maria, and the executors of her estate.1

[2]                  In the substantive proceeding, Sandra applied for orders under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949, and the Wills Act 2007. These relate to her allegation that, at the time Maria signed her Will in 2012, she was in cognitive decline and physically impaired, such that the Will does not reflect Maria’s testamentary intentions. In reply, John and Helen allege Sandra brought these proceedings only after having refused to co-operate with her fellow executors and having made unreasonable demands of her siblings and the estate solicitor. The solicitor, Mr Charles Miller, is the fourth defendant. He, together with John and Sandra, oppose Sandra’s claim.

[3]                  The present judgment determines the question of costs on several interlocutory applications brought by the van Goch siblings, which I determined in my judgment of 6 September 2018.2

Background

[4]In summary, the applications were:

(a)John and Helen’s application to remove Sandra as an estate executrix on the basis that, in issuing the substantive proceeding, she placed herself in a disqualifying position of conflict of interest and/or that Sandra’s removal is justified by events since Maria’s death;

(b)Sandra’s application for an order removing Mr Miller as solicitor on two bases; first, that he will be a critical witness in Sandra’s proceeding


1      Sandra is also third defendant in the proceeding, in her capacity as executor.

2      Van Goch v Van Goch [2018] NZHC 2335.

and, secondly, that he ought to have ceased acting when the executors were in dispute and could not give him unanimous instructions;

(c)Sandra’s application for an order directing Mr Murray McKechnie, the barrister who represented the executors in the substantive proceeding, to cease acting for John and Helen…

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Van Goch v Van Goch [2019] NZHC 2978
Case
[2019] NZHC 2978
Decision Date

CaseChat Overview and Summary

In the High Court of New Zealand, Sandra Petronella van Goch brought proceedings against her siblings and the estate solicitor to challenge the validity of their mother's will, which she claimed was not made in accordance with Maria Martina van Goch's testamentary intentions. Sandra sought to have the will declared invalid, and the estate's executors removed. The defendants opposed Sandra's claims, and counterclaimed for costs. In this case, the court was tasked with determining the costs of several interlocutory applications made by the van Goch siblings, which related to the removal of Sandra as an executor and the debarring of certain counsel.

The primary legal issue the court had to decide was whether costs should be awarded to any of the parties involved in the interlocutory applications, and if so, in what amount and to whom they should be awarded. The court had to consider whether the "loser pays" principle applied, and if not, whether any of the parties were entitled to an uplift in costs. The court also had to determine whether the application to debar counsel was successful enough to warrant costs being awarded to the defendants.

The court found that the costs on the application to remove Sandra as an executrix should lie where they fell, as none of the parties had achieved their desired outcome. However, the court found that Sandra should pay the costs of the application to debar counsel, as John and Helen were successful in defending that application. The court did not award an uplift in costs, as it was not persuaded that Sandra acted unreasonably in bringing the application. The court also noted that the application did not take up much time at the hearing, and was not a significant focus of the proceeding.

The court ordered that Sandra pay the costs of the application to debar counsel, in the amount of $4,683.00, and the disbursements in the amount of $394.06. The court did not award any costs in respect of the other applications made by the van Goch siblings. The court's decision was based on a broad view of the proceedings and the outcome, and its consideration of the principles of costs in New Zealand.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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