Connor v Connor

[2017] NZHC 1394

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-000332 [2017] NZHC 1394

IN THE MATTER	of the Estate of Ombra Connor
BETWEEN	PAUL HARWOOD GEORGE CONNOR Plaintiff
AND	MARK RICHARD CONNOR Defendant

Hearing:	21 June 2017 (Determined on the papers)
Counsel:	A J Knowsley for Plaintiff J S McHerron for Defendant
Judgment:	22 June 2017

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      In  this  proceeding  the  plaintiff,  Paul  Connor,  sued  the  defendant,  Mark Connor in his capacity as executor and trustee in the estate of Ombra Connor.  He also sought certain orders by way of summary judgment in relation to the affairs of the estate.  He asked the Court to direct that the assets of the estate be called in, but they be distributed in accordance with the will of the late Mrs Connor, and that copies of all documents relating to the estate be provided to the beneficiaries of the estate.

[2]      The application for summary judgment was opposed.  It was also met by an application for summary judgment by Mark Connor on the ground that the cause of action in the statement of claim could not succeed, all the assets in the estate having been called in and the value of the assets in Mrs Connor’s estate being exceeded by the amount of her debts. Affidavits were filed by both Paul and Mark Connor.

[3]      Paul Connor has discontinued this proceeding.  Both Paul and Mark Connor apply for costs.

CONNOR v CONNOR [2017] NZHC 1394 [22 June 2017]

[4]      As the claim was discontinued Mark Connor is entitled to costs under r 15.23 of the High Court Rules unless the Court orders otherwise.

[5]      The Court is entitled to displace the otherwise predictable outcome created by r 15.23 if it finds that there are circumstances which make it just and equitable that the rules should not apply.  The Court also retains a general discretion in relation to costs, notwithstanding r 15.23.1

[6]      Relying on the rule, Mark Connor seeks costs on a 2B basis together with an uplift of 10 per cent, and disbursements, in a total sum of $11,022.60.  Paul Connor says that costs should lie where they fall.

Discussion

[7]      It  is  clear  from  the  information  before  the  Court  that  Paul  Connor  had repeatedly attempted to obtain information about the administration of his late mother’s estate prior to resorting to a proceeding in this Court.  The information he sought was information to which he was entitled.  It should have been provided to him when it was first sought, and it should not have been necessary for him to seek the assistance of this Court to require a trustee to comply with his obligation at law.

[8]      One item of information related to a loan made by Mrs Connor to the Ombra Connor Trust.  Mark Connor seeks to explain the lack of provision of information about that as being justified because Paul Connor is not a beneficiary in the trust. Any loan that might have existed, however, would have been an asset in the estate and he is for that reason entitled to the information he sought.

[9]      It is also clear that the proceeding succeeded, in that the information Mr Paul Connor sought was finally provided to him and it was only when it was provided that he discontinued the proceeding.  These factors are relevant to the issue of costs; Paul

Connor succeeded in achieving the purpose for which the proceeding was issued.

1      Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, FM Custodians Ltd v Pati [2012]  NZHC  1902,  Opus  International  Consultants  Ltd  v  Colac  Bay  Vision  Ltd  [2015] NZHC 1782.

[10]     In my opinion, this proceeding represents a dispute between brothers which has escalated to the point of High Court proceedings with cross applications for summary judgment because necessary information was not provided, and cool heads were not brought to bear on the issues arising from the financial aspects of the later years of Mrs Connor’s life.  Neither application should have been necessary.  In my judgment, costs on both those applications should lie where they fall.

[11]     The success Paul Connor achieved by issuing the proceeding is sufficient to displace the principle in r 15.23.  Costs on the substantive proceeding should also lie where they fall.

[12]     There will be no order for costs.

J G Matthews

Associate Judge

Solicitors:

Rainey Collins, Wellington
Greg Kelly Law Limited, Wellington