Wright v Ryder

[2024] NZHC 4004

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-623882

[2024] NZHC 4004

UNDER

section 49 of the Administration Act

IN THE MATTER OF

the will of JAMES PHILIP MASTERS

BETWEEN

CHRISTINE MAY WRIGHT

Applicant

AND

DENISE MARIE RYDER

Respondent

Hearing:	On the Papers
Counsel:	A Douglass for Applicant
Judgment:	20 December 2024

JUDGMENT OF CHURCHMAN J [COSTS]

Introduction

[1]                 On 23 October 2024, following my decision awarding costs to the applicant and directing an amended schedule of costs be filed, the applicant filed a new schedule setting out the costs claimed in respect of the caveat application, recall application and application for probate in solemn form.

[2]                 Due to issues with particularisation, on 12 November 2024 I issued a minute directing that another schedule of costs be filed with greater specificity. Such a schedule of costs was filed on 26 November 2024.

[3]                 Although I am now satisfied that the costs claimed were indeed incurred by the applicant, I have concerns as to whether they are “reasonable” for the purposes of

WRIGHT v RYDER [2024] NZHC 4004 [20 December 2024]

r 14.6 of the High Court Rules 2016 (HCR), particularly in regard to application for probate.

Submissions

[4]                 Ms Douglass, counsel for the applicant, submits that the costs of $46,421.05 claimed in respect of the application for probate in solemn form are reasonable, given the hourly rates of $400 and $150 (excluding GST) and that these costs were incurred over an eight month period following the recall of grant of probate.

Analysis

[5]                 Rule 14.6(1)(b) of the HCR provides that the Court may only order actual costs, disbursements and witness expenses that were reasonably incurred by a party. As noted in Bradbury v Westpac Banking Corporation, this wording envisages a degree of judicial oversight of awards of indemnity costs, to be exercised in a manner that delivers a just and fair result.1 In that decision, Harrison J determined that the appropriate course for assessing what actual costs were reasonably incurred is to:2

(a)determine whether a particular item of expenditure is reasonably incurred

(b)fix what would be a reasonable allocation of actual costs, measured by reference to an appropriate time taken and allowing for significance and complexity of the category of work; and

(c)quantify the costs by reference to a median hourly rate reasonably applicable to it.

[6]                 Rule 14.2(d) of the HCR, in providing that an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding, makes clear that actual costs should be around 1.5 times as much as scale costs.

1      Bradbury v Westpac Banking Corporation (2008) 18 PRNZ 859 at [205].

2 At [209].

[7]                 With respect to the costs incurred for the application to caveat the will, I am satisfied the $452.41 claimed was reasonably incurred. Despite some issues as to particularisation, with one invoice relied on referring to “various matters including caveating the Will”, given the sum claimed is relatively modest, and no costs are claimed in respect of legal aid invoices, I consider this to be of little moment.

[8]                 In relation to the recall application, I note that after reviewing time records, Ms Douglass has revised the costs  claimed  from  $8,330  (18  hours)  to  $6,950  (15 hours). The items claimed, namely research on the HCR, drafting and sending letters, correspondence, drafting and filing a without notice application, and filing a memorandum in support, would amount to scale costs in the range of $2,629 to $5,258. This results in reasonable actual costs being in the range of $3,943.50 to $7,887. The costs claimed by the applicant clearly fall within this range. Alongside the fact a reasonable recovery rate of $400 was charged, I consider that these costs were also reasonably incurred.

[9]                 I now turn to the costs claimed for the application for probate in solemn form. I consider the sum of $3,251.05 claimed as costs incurred by Ms Drought to be reasonable. A reasonable rate of $250 per hour was charged, and those items that could be compared to items in sch 3 to the HCR setting out time allocations, such as the drafting of the letter to Attewell Clewes, took an appropriate time to complete.

[10]             With respect to the costs claimed from work undertaken by Ms Douglass, although the cost of each item remains unparticularised, in drawing a comparison to the items in sch 3 to the HCR, I consider the costs of $7,410 claimed under invoice 80624 to be reasonable, noting this includes substantial legal research and urgently contacting the Registrar on 22 December 2023, and that four hours had been removed for separate matters.

[11]             However, I consider the sum of $14,597.50 claimed under invoice 81624 to be unreasonable. Although this included filing of memoranda, drafting of letters and appearances before Grau J, I do not consider such matters would ordinarily have required the assistance of junior counsel, and note the lack of particularisation means it is unclear whether there may have been duplication in the work undertaken. I am

willing to accept $10,580, being 23 hours charged at $400 per hour by Ms Douglass alone, as reasonable.

[12]               I also consider the $6,950 claimed under invoice 84921 to be unreasonable, as although the time under that invoice had been reduced by five hours, the items claimed were limited to correspondence regarding appointment of an independent executor, drafting and filing of memoranda, and meetings with and advice to the client. I consider costs of $5,000 to be more appropriate.

[13]             I accept the sum of $10,400 claimed under invoice 82124 is reasonable, noting counsel received several memoranda from Ms Ryder which would have taken a significant amount of time to review, and included filing memoranda and appearing before McHerron J. I also note this sum had been significantly revised from the

$13,800 originally claimed.

[14]             I also accept the costs of $3,812.50 attributed to Mr Copeland, noting this covers his attendances from 22 July to 31 August 2024 as instructing solicitor, and various correspondence with the applicant.

[15]             Consequently, I reduce the sum claimed for the application for probate in solemn form by $5,967.50 to $40,453.55.

Conclusion

[16]I order that:

(a)costs of $22,915.53 are to be paid by respondent to the applicant.

(b)costs of $30,317.94 are to be paid by the Estate to the applicant.

Churchman J