Warin v Warin

[2025] NZHC 2134

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-293 [2025] NZHC 2134

BETWEENNIGEL TREVOR WARIN as executor of the Estate of Marian Ruth Warin

Applicant

AND AND

COLLEEN ANN WARIN

Respondent

JAMES EDMOND MCLENNAN
Interested Party

Hearing:                   On the papers

Appearances:           S Gyenge for Applicant

D Hayes for Respondent

Judgment:                1 August 2025

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[Costs]

[1]    The parties have been unable to agree costs following the discontinuance by the applicant of the proceeding. Primarily, this related to interlocutory applications for leave to issue an enforcement process and for charging orders in respect of properties on Waiheke Island and in Taupō. The parties were unable to agree despite me urging counsel to confer and to attempt to resolve costs particularly given the relatively small amounts in issue and the further costs involved in preparing memoranda.

[2]The applicant seeks an order that costs lie where they fall.

WARIN v WARIN [2025] NZHC 2134 [1 August 2025]

[3]The respondent seeks indemnity costs and disbursements in the total sum of

$21,200.50 (GST inclusive). Alternatively, the respondent seeks scale costs calculated on a 2B basis with a 50 per cent uplift and disbursements.

Background

[3]        I adopt the background set out in the recent judgment of McQueen J in this matter:1

[3]        The Warin family has been engaged in protracted, but intermittent, legal proceedings over money owed by Colleen to her parents. In April 2017, Associate Judge Smith granted summary judgment in favour of Marian (Summary Judgment). The judgment sum was $177,470.63, with interests and costs. The total debt claimed is $206,081.83 (Judgment Debt).

[4]        A charging order (to the amount of the Judgment Debt) was made over a Waiheke Island property in 2017. A sale order was subsequently issued and defended in 2018. Marian discontinued the sale order application in September 2019 due to Colleen’s live bankruptcy proceedings, and other intervening mechanisms including notices under the Property Law Act 2007. In determining an application for costs in November 2019, Justice Churchman observed Marian “acted reasonably” in bringing, and discontinuing, the sale order, and granted costs in her favour.

[5]        It is not clear why no enforcement action was undertaken between 2020 and 2023, but the memorandum of counsel accompanying the applications suggests that Marian’s declining health, subsequent death and delays in granting probate were contributing factors.

[6]        Marian died in February 2023. Probate was granted on 1 March 2024, with Nigel  appointed  as  the  sole  executor.  Marian’s  will,  dated  25 July 2018 (the Will), includes a specific directive that her executor is to recover the Judgment Debt. The Will also records that there is no provision for Colleen under the Will because, at the time the Will was made, Colleen had not repaid loans owing to Marian and her husband.

[7]        The Judgment Debt  remains  unsatisfied.  Colleen  has  an  interest in two properties, to which charging orders might be attached.  The interested party is also named as a registered proprietor of those properties. It appears that he and Colleen are trustees for a trust settled by and for the benefit of Colleen. The memorandum of counsel for Nigel states  that Colleen is taking steps to sell one of the properties and attaches a real estate agent listing of that property.

[4]        McQueen J ordered that the applications for leave to issue an enforcement process and for final or interim charging orders were to be served on the respondent and the interested party.2

1      Warin v Warin [2025] NZHC 67 (footnotes omitted).

2 At [22].

[5]        Rule 15.23 of the High Court Rules 2016 is clear that, unless the defendant agrees otherwise or the Court otherwise orders, a plaintiff who discontinues a proceeding, or interlocutory application,3 must pay costs to the defendant of and incidental to the proceeding up to the point of discontinuance. The presumption is designed to give a certain and predictable outcome. There is no implication that an award of increased or indemnity costs follows.4 The following considerations are relevant to whether the presumption has been rebutted:5

(a)The reasonableness of the parties’ stances will be taken into account; whether it was reasonable for the plaintiff to bring and continue the proceeding and whether it was reasonable for the defendant to oppose it. It is not sufficient for the plaintiff to show merely that it had reasonable grounds to believe it would be the successful party.

(b)Conduct prior to the commencement of the proceedings may be relevant.

(c)The Court will not consider the merits of the respective cases unless they are so obvious that they should influence the costs outcome.

(d)The reason for discontinuing the proceeding may be relevant. For example, there may have been a change of circumstance rendering continuation of the proceeding unnecessary.

[6]        The applicant was appointed sole executor of the estate of his mother,  Marian Warin, in March 2024. He commenced the subject applications in early 2025 apparently as part of the ongoing attempt to recover the judgment debt owed by the respondent to Marian’s estate as directed by Marian’s will. The applicant says the trigger for the applications was that the only remaining unit at the property in Taupō was on the market for sale.

3      MV Celebre Ltd v Airwork Fight Operations Ltd [2015] NZHC 1400 at [9].

4      Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [15.23.04] citing Arnold v Fairfax New Zealand Ltd [2016] NZHC 1078 at [19].

5      See Royal Forest and Bird Protection Society of New Zealand Incorporated v Northland Regional Council [2019] NZHC 449 at [7].

[7]        The applicant has now discontinued the applications. It is not clear why. It seems he considers that all matters between the parties should be resolved by mediation, including wider issues between Marian’s estate and the estate of his father, Trevor Selwyn Warin, and the TS Warin Family Trust. He submits that the administration of the estates is “greatly impacted” by the respondent’s failure to meaningfully engage in settlement negotiations. The applicant submits that if there is no settlement then further litigation will be required. He submits he has been acting reasonably throughout, including in discontinuing proceedings at this point given the parties focus should be on reaching a global settlement.

[8]        However, the respondent submits the ongoing dispute is between the applicant as executor of Marian’s estate and Wayne Warin as executor of Trevor’s estate. She submits she has nothing to do with the estates and has no interest in the disputes between the applicant and Wayne. She notes that no provision is made for her as a beneficiary in Marian’s will. She says she is not interested in a “global settlement” as that is an issue to be resolved between the executors of the estates.

[9]        As noted above, Marion previously obtained a charging order over, and applied for a sale order for, the Waiheke Island property. The respondent filed an interlocutory application seeking to restrain the sale and advertising on the property, contending that it was owned by a trust and not her personally. The application for a sale order was subsequently discontinued because:6

… it was uneconomic to pursue it, given that there were live bankruptcy proceedings against the defendant and the mortgagee had now issued Property Law Act notices against the defendant. In these circumstances, it was considered to be more economic for the first plaintiff to allow these mechanisms to play out rather than incur further legal costs.

[10]      This Court found that Marian “acted reasonably” in applying for the sale order and then discontinuing the proceedings for the reasons set out above. The Court found that the presumption under r 15.23 had been rebutted and awarded scale costs to Marian.7

6      Warin v Warin [2019] NZHC 2875 at [3].

7 At [6].

[11]      I do not consider that the presumption under r 15.23 has been rebutted in respect of the current discontinuance. The applicant has not identified any change of circumstances since early 2025 rendering the applications unnecessary. The applicant did not need to discontinue the applications to pursue mediation. In any event, there was no agreement to mediate prior to the discontinuance and the respondent is not willing to mediate. The applicant also acknowledges that if the matter cannot be resolved by mediation, then further litigation will be required. If the applicant discontinued the applications because he was concerned that he would not be successful, then that supports rather than rebuts the presumption.

[12]      The respondent contends that she is entitled to increased or indemnity costs because the applications are “an abuse of process” in that the applicant has been party to two previous enforcement proceedings which were discontinued or ended by the Court. Further, the applications had no prospect of success because the respondent has no legal interest in the properties sought to be charged. She submits that the applicant attempted to obtain ex parte orders with knowledge that at least the Waiheke Island property has been purchased by a trust. She emphasises that there has been delay in enforcing the judgment and there was no correspondence prior to the applications being filed. Furthermore, she argues the explanation for discontinuance to allow for mediation is inadequate and the applicant has discontinued as it clear the properties are not owned personally by the respondent. She submits that costs have increased because of the failure by the applicant to follow timetabling directions. Moreover, the applicant was warned after filing the applications that the respondent would seek indemnity costs if the applications were not withdrawn.

[13]      It is well established that increased or indemnity costs may only be awarded in a case which has been discontinued before or during a hearing where the lack of merit is “utterly clear” and “both obvious and incontrovertible”.8 The Court will not engage in speculation as to the merits, nor consider evidence that would have been assessed if the matter had proceeded to trial or hearing. To do so would defeat the whole

8      N-Tech v Abooth [2012] NZHC 1167 at [99] and [108].

purpose of discontinuance, which is to provide a quick and inexpensive end to the proceedings.9

[14]      Having reviewed the memoranda filed by parties, I am not satisfied that it is “utterly clear” and “both obvious and incontrovertible” that the applications were an abuse of process or had no prospect of success.10 While there has been delay in the enforcement of the judgment debt since the applicant was appointed executor in March 2024, as noted above, this Court has previously found that Marian acted reasonably in bringing an application for a sale order in respect of the Waiheke Island property. I am not prepared to speculate on the merits of the applications when considering costs on a discontinuance without the benefit of full argument. Nor do I consider it is appropriate for a costs order to be made against the applicant personally, as sought by the respondent. The applicant is acting as executor of his mother’s estate and the will included a specific directive to seek recovery of the judgment debt from the respondent.

[15]      I find that the respondent is entitled to 2B scale costs and reasonable disbursements. The respondent has calculated 2B scale costs in the sum of $8,604 and disbursements (filing fee) in the sum of $143.00. The respondent has claimed costs for preparing and filing a notice of opposition and supporting affidavit under item 38 in sch 3 to the High Court Rules as if the applications were an originating application under pt 19. However, it is apparent that the applications are interlocutory applications in the existing proceeding, so item 23 is appropriate.11 After that adjustment, the respondent is entitled to costs in the sum of $5,258.

Result

[16]      The respondent, Colleen Anne Waring, is entitled to costs in the sum of $5,258 and disbursements in the sum of $143, to be paid out of the assets of the estate of

9      North Shore City Council v Attorney-General on behalf of Department of Building and Housing [2012] NZHC 734 at [10] and McIlroy v New Zealand Act Party HC Wellington CIV-2003-485- 174, 16 December 2005 at [16].

10 N-Tech v Abooth, above n 8, at [99] and [108].

11 Item 23 is intended to cover the preparation and filing of a notice of opposition and an affidavit in support of the notice of opposition.

Marian Ruth Warin.

Associate Judge Skelton

Solicitors:

LOA Limited for the applicant

Holmden Horrocks for the respondent