Wellwood v Wellwood

[2019] NZHC 426

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-606488

[2019] NZHC 426

UNDER

the Trustee Act 1956 and the Administration Act 1969

IN THE MATTER

of the Estate of Roderick Arthur Wellwood

BETWEEN

ROBYN MARIA WELLWOOD, ELINOR LISA MARTEL and ANNA KATRINA ASHTON

Plaintiffs

AND

MICHAEL WELLWOOD

Defendant

Hearing:	On the papers
Counsel:	G W D Manktelow for Plaintiffs C J Tennet for Defendant
Judgment:	15 May 2019

JUDGMENT OF COOKE J

(Costs)

[1]        In my judgment of 12 April I confirmed orders relating to the substitution of the Executor of the Estate.1 In the course of that judgment I concluded that it was not appropriate to make a costs award, but I was minded to agree that the reasonable costs of each side should be met out of the assets of the Estate. I further directed that the parties should file memoranda following which I would determine the amount, or the proportion of the amount that would be met out of the assets of the Estate.

1      Wellwood v Wellwood [2019] NZHC 801.

WELLWOOD v WELLWOOD [2019] NZHC 426 [15 May 2019]

[2]        The memorandum from counsel for the plaintiff invites me to reconsider the costs decision I have made. It seeks an order of costs against the defendant, as well as a direction that the plaintiffs’ legal expenditure be met out of the assets of the Estate. The memorandum of counsel for the defendant opposes any change to the costs award, contends that the parties had effectively resolved that each side would be paid out of the assets of the Estate, and puts forward the defendant’s costs in order that they be directed to be paid out of the assets of the Estate.

[3]        I decline to change the costs decision I have already reached. I note that the authority relied upon by counsel for the plaintiff, Hunter v Hunter, itself makes clear that the decision in relation to costs “all depends upon the circumstances of the particular case”.2 I also note that the costs award claimed was calculated on the basis that the proceeding was an ordinary proceeding, rather than an originating application as I directed in paragraph [8] of the judgment, and accordingly substantially overstates the costs award that would be made. It also involves claiming an award that is greater than the costs actually incurred, which is not permitted (r 14.2(1)(f) of the High Court Rules 2016).

[4]        In terms of the defendant’s legal expenditure totalling $13,922.50, this expenditure strikes me as being reasonable, and I direct that it be paid out of the assets of the Estate. The plaintiffs’ costs are higher totalling $21,944.56, and I hesitate in ordering that this total amount be paid out of the assets of the Estate, but in the end direct that they can be so in light of the fact that the application has been successful. Obviously if the Estate has already paid for some of these costs the Estate would not be obliged to pay for them again.

Cooke J

Solicitors:

Guy Manktelow, Lower Hutt for Plaintiffs Maniapoto Law Ltd, Petone for Defendant

2      Hunter v Hunter [1938] NZLR 520 at p 538 per Myers CJ.