Ware v Reid - [2019] NZHC 1706

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2016-412-000151

[2019] NZHC 1706

BETWEEN
JOCELYN DALE WARE

Plaintiff

AND

JAMES ROBERT REID AND ANTHONY JAMES HARRIS

Defendant

Hearing: On the papers

Appearances:

H C Matthews and R A Kay for Plaintiff D Sim and J Pierce for Defendants

A J Logan for Helen Walker
T J Shiels QC for J M Reid and G J Harris

Judgment:

19 July 2019

JUDGMENT OF DUNNINGHAM J RE: COSTS

Introduction

[1] This proceeding involved Family Protection Act claims made by two daughters against the estate of their late mother, Dorothy Maureen Walker.

[2] Jocelyn Dale Ware (Dale), who is one of four sisters, initiated these proceedings, but withdrew her claim shortly before trial. However, a further claim had been made by the youngest sister, Helen Walker (Helen), so the proceedings continued to trial. Helen’s claim was unsuccessful.

WARE v REID [2019] NZHC 1706 [19 July 2019]

[3] The named defendants, the trustees and executors of the estate, now seek costs against both Dale and Helen (the plaintiffs). Costs are also sought by the two other sisters, Jill Reid and Gaye Harris (the beneficiaries).

[4]The determination of costs is more complex in this case than usual because of:

(a)the transition of the role of plaintiff from Dale to Helen; and

(b)the nature of the claims, and the way they were pursued, which have given rise to arguments that increased or indemnity costs should be awarded to the defendants and the beneficiaries.

[5] All parties filed detailed memoranda on costs, and their respective claims for costs are set out in summary as follows.

Claim by defendants

[6] The defendants, Mr Reid and Mr Harris, as executors and trustees of the estate, claim, as alternatives, the following costs from the plaintiffs:

(a)indemnity costs; or

(b)costs on a 2B basis, with costs for affidavits on a 2A basis and costs for documents on a 2C basis, plus disbursements.

Alternative 1: indemnity costs

[7] The actual costs incurred by the defendants are stated to be $60,547.50 (including GST). They claim these costs against the plaintiffs jointly and severally.

[8] The defendants submit that their costs should be covered in full in order to restore the share in the residue that the beneficiaries would have received had the proceedings not been brought. Any costs not paid by the plaintiffs will be taken from the residue of the estate. The defendants contend this should be considered when assessing the overall impact of costs orders.

[9] The defendants also state that they have incurred very significant costs due to the nature of the arguments raised by the plaintiffs. These costs relate largely to discovery and matters of valuation, as it was necessary to undertake wide-ranging historical research into dealings with family assets. The defendants submit that the responsibility and costs for discovery and collation of these documents fell largely to them. Even an award of the actual costs incurred would not completely restore…

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 Ware v Reid

Details

AGLC: Ware v Reid [2019] NZHC 1706
Case: [2019] NZHC 1706
Decision Date: 19 July 2019

CaseChat Overview and Summary

This proceeding involved Family Protection Act claims made by two daughters, Jocelyn Dale Ware and Helen Walker, against the estate of their late mother, Dorothy Maureen Walker. Dale withdrew her claim shortly before trial, but Helen's claim continued to trial and was unsuccessful. The defendants, the trustees and executors of the estate, now seek costs against both Dale and Helen. The two other sisters, Jill Reid and Gaye Harris, who are beneficiaries of the estate, also seek costs against the plaintiffs. The determination of costs in this case is complex due to the transition of the role of plaintiff from Dale to Helen and the nature of the claims.

The defendants, as executors and trustees of the estate, are entitled to have the costs they have incurred in participating in these proceedings met from the estate funds. However, this would unfairly erode the share of the three sisters who are entitled to share in the residue of the estate. The Court is not prepared to award indemnity costs, as indemnity costs are only awarded in limited circumstances, generally requiring unreasonable or improper conduct by the party from whom costs are claimed. The Court found that Dale's claim could not be seen as within the category that usually attracts indemnity costs, and while Helen's claim was less meritorious than Dale's claim, it was not vexatious or unreasonable enough to warrant a punitive award of indemnity costs. The Court orders that Dale and Helen should each be liable to the defendants for 50 per cent of the costs on a 2B basis for each step in the proceedings, up until 1 February 2019. Helen is liable for all the defendants' costs and disbursements after 1 February 2019 on a 2B basis, but the defendants cannot claim for preparation for hearing.

For the beneficiaries' costs claim, the Court does not consider that indemnity costs should be awarded. The appropriate costs category for the costs claim by the beneficiaries for all steps up to the withdrawal of Dale's claim should be 2B. However, Helen should pay the beneficiaries 2B costs, but with a 50 per cent uplift, on the steps taken in preparing for and attending the hearing, as she failed to accept a reasonable offer to settle the proceedings without costs. The Court is satisfied that the disbursements claimed by the beneficiaries should also be met by the plaintiffs, with the plaintiffs being equally liable for them up until 1 February 2019, after which those disbursements are payable by Helen alone.

In summary, the Court has made a range of general orders and expects the parties to work out the dollar value of the defendants' and beneficiaries' entitlement to costs, applying the determinations set out in this costs decision. The Court reserves leave to the parties should there be any omission or ambiguity in this judgment over the plaintiffs' liability for costs to revert to the Court for clarification so that final figures can be calculated and paid.

Orders