Winiana v Hook

[2025] NZHC 2115

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-239

[2025] NZHC 2115

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of an application for an order that a document be declared to be a valid will of the deceased RANGIMARIA ANZAC (ZAC) WILLIAMS

BETWEEN

JOSEPH CLAYTON TED WINIANA

Applicant

AND

SALLY HOOK

Respondent

On the papers
Counsel:	D M Kerr for Applicant S J Iorns for Respondent
Judgment:	30 July 2025

JUDGMENT OF ISAC J

[Costs]

Introduction

[1]        On 3 June 2025 I issued a minute recording the consent orders sought by the parties resolving this proceeding. The only remaining issue is the question of costs, which are now determined in this judgment.

Background

[2]        The substantive proceeding concerned Mr Winiana’s application to declare a document a valid will of the late Rangimaria Williams under s 14 of the Wills

WINIANA v HOOK [2025] NZHC 2115 [30 July 2025]

Act 2007. The application was opposed by Ms Hook and was scheduled for a hearing on 3 June 2025. However, in a memorandum filed the day of the hearing counsel confirmed the terms of settlement. At the parties’ request my minute directed that:1

Costs are reserved, to be determined on the papers if the parties cannot agree. The applicant shall file and serve costs submissions within 10 working days and the respondent shall file  and serve costs submissions within a  further  10 working days.

[3]        I also encouraged the parties to reach agreement on costs rather than remit the matter to the Court, observing that:2

Costs should be determined predictably in accordance with the time allocations in the High Court Rules 2016.

The costs now claimed by the applicant

[4]        In a memorandum of 16 June 2025 the applicant seeks increased or indemnity costs. The applicant’s actual legal costs exceed $53,000 and disbursements. He says scale costs amount to $19,956.50 before any uplift. Immediately after the court orders were made, the applicant proposed that the respondent should pay costs on a 2B basis, together with disbursements. The respondent refused that offer and the applicant has been forced, once more, to apply to the Court.

[5]        In response, the respondent argues for reduced costs, or for costs to lie where they fall. First, the respondent conceded the application very shortly after the applicant filed “reply” evidence only a matter of two weeks before the hearing and as soon as it became apparent that the application was going to succeed. Second, the respondent says she is in poor health and had issues finding representation, which resulted in delays in the management of the proceedings which should not aggravate the proper measure of costs.

Costs principles

[6]        All matters relating to costs are discretionary,3 although that discretion must be exercised on a principled basis. So far as possible the determination of costs should be

1      Minute of Isac J, 3 June 2025 at [3(i)].

2 At [4].

3      High Court Rules 2016, r 14.1.

predictable and expeditious.4 The usual rule is that costs follow the event; the party who fails with respect to a proceeding pays costs to the successful party.5 Scale costs apply by default unless cause is shown to depart from them.6

[7]        Under r 14.6(3), a court may make an order for a party to pay increased costs if:

(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)failing to comply with these rules or with a direction of the court; or

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

[8]        Generally, increased costs may be ordered where there is a failure by the paying party to act reasonably.7 As the Court of Appeal said:8

It is not enough that an appeal (and therefore cause of action at first instance) lacks merit. Increased costs will generally not be appropriate where there are “at least available starting points” for the argument — where its pursuit is not “unreasonable” nor “hopeless”. The costs regime should be predictable and litigants with “real arguments presented responsibly” to the courts should not fear an adverse increased costs award if their case fails. The standard costs regime recompenses in the case of normal failure.

4      Rule 14.2(1)(g).

5      Rule 14.2(1)(a).

6      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [6].

7 At [27].

8      Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZCA 684 at [16] (footnotes omitted).

Decision

[9]        I am satisfied this is a case where costs are payable by the respondent to the applicant on a 2B basis. The situation is by analogy the same as a plaintiff discontinuing against a defendant where costs automatically follow.9

[10]      I also consider it is appropriate to award the respondent increased costs for some of the steps taken in the proceeding.

[11]      The key issue was the validity of the document purporting to be Mr Williams’ will. In August 2024 the respondent engaged an expert to conduct a handwriting analysis on the signature on the document in question. The respondent received the results of the handwriting expert on 9 September 2024, which — broadly — concluded the signature was authentic. With that a reasonable party in the respondent’s position ought to have withdrawn their opposition to the application. However, the respondent continued to maintain her opposition in turn requiring the applicant to file reply evidence addressing amongst other things the contents of the deceased’s laptop. Despite that evidence the respondent continued her opposition until the day of the hearing. In doing so I consider her conduct was unreasonable and contributed unnecessarily to the time or expense of the proceeding.

[12]      In addition, while the respondent appears to have suffered from ill health for periods of time, there is no evidence to suggest her repeated failures to comply with the Court’s timetabling directions can all be attributed to illness. These failures were sufficient to cause the Court to make an unless order. They also contributed unnecessarily to the applicant’s costs.

[13]      Increased costs with an uplift of 30 per cent are therefore payable to the applicant from 9 September 2024. For all remaining steps costs on a 2B basis are appropriate.

9      High Court Rules 2016, r 15.23.

Result

[14]      The respondent must pay costs to the applicant in the sum of $24,533 together with disbursements of $265 for the court filing fee and fee for sealing the orders.

Isac J

Solicitors:

Langley Twigg, Napier for Applicant

S J Irons, Barrister, Wellington for Respondent