Wightman v Public Trust

[2013] NZHC 2771

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2012-409-001312 [2013] NZHC 2771

UNDER  The Family Protection Act 1955

IN THE MATTER OF       the Estate of Robert Wallace Wightman

BETWEEN  COLIN MARK WIGHTMAN, RICHARD CHARLES CLELAND OLDFIELD, RODGER WIGHTMAN ANDERSON, ANN MARIE FLOOD AND PAMELA JANE PARROT

Plaintiffs

ANDPUBLIC TRUST Defendant

Hearing:                   (On the Papers)

Counsel:                  S Grieve and S Caradus for Plaintiffs

N Till QC and R Calvert for Defendant
I Hunt for William Wightman

Judgment:                22 October 2013

COSTS JUDGMENT OF PANCKHURST J

Costs application

[1]      The plaintiffs seek a category 2B costs award in relation to the determination of a separate question  before trial.   The question,  whether this  proceeding was inhibited  by cause  of  action  estoppel  or  issue  estoppel,  was  determined  in  my judgment of 26 March 2013.

[2]      Costs are sought both against the Public Trust, the only named defendant in the proceeding and being of course the executor of the Estate of Robert Wallace Wightman and also against Robert William Wightman.  Although referred to as a

“non-party” in the costs memoranda, Robert Wightman was a person directed to be

WIGHTMAN AND ORS v PUBLIC TRUST [2013] NZHC 2771 [22 October 2013]

served  and  he subsequently filed a notice of defence and  has  been  represented throughout by Mr Hunt.  Indeed, he was the proponent of the estoppel arguments, the subject matter of the separate question.

[3]      Although not named as a defendant1  Robert Wightman is to all intents and purposes a party given the role he has assumed.

Submissions

[4]      No issue was taken in relation to the claim for category 2B costs.

[5]      However, Mr Till QC on behalf of the Public Trust opposed an award against the defendant, since it had assumed the customary role of assisting the Court but otherwise playing no active part in relation to the separate question.  Mr Hunt, for Robert Wightman, agreed that there was little logic in the defendant being ordered to meet costs as if it were an unsuccessful party.

[6]      However,  he  maintained  that  the  separate  question  was  isolated  and determined as a preliminary matter by the agreement of the parties;  and that costs should be reserved pending the substantive hearing, or be fixed as costs in the cause.

Decision

[7]      I  am  in  essential  agreement  with  Mr  Hunt’s  submissions.    Equating  the separate question to an interlocutory application,2 I consider it appropriate that costs assessed  on  a  2B  basis  are  fixed  and  payable  by  Robert  Wightman  as  the unsuccessful party.  However, I also accept that the award should be fixed as costs in the cause to be accounted for in the course of the substantive resolution.  I do not contemplate that the award may be revisited.

Solicitors:

Duncan Cotterill, Christchurch

Public Trust Legal, Christchurch

1      Rule 18.5(2) provides that the only defendant required to be named is the executor.

2      Rule 14.8.