Dally v Dowden

[2020] NZHC 2909

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-18

[2020] NZHC 2909

UNDER

the Family Protection Act 1955

IN THE MATTER

of the estate of John Thomas Dally

BETWEEN

CASSANDRA DALLY

First plaintiff

VALMAY O’BRIEN
Second plaintiff

AND

ANTHONY SIMON DOWDEN

First defendant

DONNA HARRIS

Second defendant

Hearing:

On the papers

Counsel:

S A McKenna and A Osama for the plaintiffs C M Earl for the first defendant

D M O’Neill for the second defendant

Judgment:

5 November 2020

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 5 November 2020 at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

C M Earl, Barrister, Hamilton

D M O’Neill, Barrister, Hamilton McKenna King, Hamilton

DALLY v DOWDEN - Costs [2020] NZHC 2909 [5 November 2020]

[1]                   My 12 October 2020 judgment dismissed the plaintiffs’ Family Protection Act 1955 claim, for provision to be made out of their father’s estate for their proper maintenance and support, and reserved costs while observing:1

As the successful parties, Anthony and Donna presumptively are entitled to obtain a contribution to their legal expenses from Cassandra and Valmay. However – given the family context to the litigation, now resolved, and the undesirability it be fanned back into life by any dispute as to costs’ liability or payment – my preliminary view is costs should lie where they fell: that is, be borne by the party incurring them.

[2]                   Anthony and Donna respectively claim costs in the amounts of $18,044.50, and $15,862.50 plus  disbursements of $160,  the  latter amount of costs  applying    a reduction to reflect Donna’s late representation so as not to exceed her actual legal expenses.

[3]                   Cassandra and Valmay respond to endorse not embedding the family dynamic by any award of costs, which are of “inconsequential” sum in comparison to Anthony and Donna’s gifts from the estate. They point out even after the deduction Donna is close to indemnified, and her late representation means Donna incurred no legal expenses in preparation of affidavits for further reduction. No reply has been filed.

[4]                   While any award of costs is in my discretion, it is a discretion to be exercised in accordance with principle.2  Those principles establish the presumption to which    I initially referred. They also include, while an award of costs is aimed at recovering a two-thirds contribution to reasonable legal expenses, neither the actual contribution nor actual expenses is material.3 I therefore disregard the issues raised about Donna. The comparison between costs claimed by, and gifts to, each Anthony and Donna also is irrelevant. The costs are not disproportionate to their retention of the gifts’ benefit.4

1      Dally v Dowden [2020] NZHC 2670 at [31].

2      High Court Rules 2016, rules 14.1 and 14.2; Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28]; Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].

3      High Court Rules 2016, rule 14.2(1)(e).

4      Rule 14.7(a)–(c).

[5]                   Critically, “so far as possible the determination of costs should be predictable and expeditious”.5 In other words, it was obvious to all parties what costs award was likely to accompany loss. The reason for my preliminary view only justifies refusing costs if that is accepted by the parties, despite predictability and expedition.6 Otherwise refusal is at least as inflammatory as may be the known costs exposure’s pursuit. But an award then is the principled result.

[6]I therefore order Cassandra and Valmay jointly and severally to pay costs to:

(a)Anthony in the amount of $18,044.50; and

(b)Donna in the amount of $15,862.50, plus disbursements of $160.

—Jagose J

5      Rule 14.2(1)(g).

6      Rule 14.7(g).