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…

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 Warin v Warin

Details

AGLC: Warin v Warin [2025] NZHC 2134
Case: [2025] NZHC 2134
Decision Date: 1 August 2025

CaseChat Overview and Summary

The case of Warin v Warin involved a dispute between Nigel Trevor Warin, as the executor of the estate of Marian Ruth Warin, and Colleen Ann Warin, with James Edmond McLennan also being an interested party. The applicant, Nigel Warin, sought to enforce a judgment debt owed by the respondent, Colleen Warin, to the deceased Marian Warin. The central issue before the court was the determination of costs following the discontinuance of certain applications by the applicant. The court was required to decide whether the presumption under rule 15.23 of the High Court Rules 2016 that the discontinuing party must pay costs should be rebutted, and if so, whether the respondent was entitled to indemnity costs or merely scale costs.

The court found that the presumption under rule 15.23 had not been rebutted as the applicant had not demonstrated any change of circumstances rendering the applications unnecessary, and the discontinuance was not due to a change in the parties' stances or a change in the merits of the case. The court noted that the applicant had not acted unreasonably in bringing the applications and that there was no clear indication that the applications were without merit or an abuse of process. Therefore, the court ruled that the respondent was entitled to scale costs and reasonable disbursements, but not indemnity costs, as the lack of merit in the applications was not "utterly clear" and "both obvious and incontrovertible". The court assessed the respondent's costs and disbursements and determined the amount to be $5,258 and $143 respectively, to be paid out of the estate of Marian Ruth Warin.

The court ordered that 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 Marian Ruth Warin.

Orders