Michelson

[2019] NZHC 2446

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-604868

[2019] NZHC 2446

UNDER

the Administration Act 1969

IN THE MATTER

of the Estate of Samuel George Collins also known as George Samuel Collins

BETWEEN

KERRYN JOY MICHELSON

Applicant

Hearing:	On the Papers
Counsel:	R D Clark
Judgment:	26 September 2019

JUDGMENT OF CLARK J

[1]    This is an application for costs by the executor of the estate of Mr Samuel George Collins, who died in March 2019.

[2]    Mr Collins left a will dated 22 February 2017. An application for probate was filed on 1 April 2019. On 9 April 2019, a caveat against the grant of administration was lodged on behalf of Ms Margaret Rippey and Ms Susan Guest, (the caveators). On 17 May 2019, the executor filed a without notice application for an order nisi for the grant of administration. The order nisi was sealed on 20 May 2019 and the matter schedule for hearing on 19 June 2019 for the caveators to show cause why the order nisi should not be made absolute. The caveat was withdrawn on 18 June 2019, the day before the fixture. On 19 June 2019, Toogood J granted an “order absolute as moved” and reserved costs for exchange of memoranda.

MICHELSON [2019] NZHC 2446 [26 September 2019]

[3]    The executor’s solicitors attempted to resolve costs with the caveators by email to their solicitors dated 8 July 2019. They received no response. The executor now seeks costs of $6,690 on a 2B basis and disbursements of $84.85. Mr Clark, for the executor, submits the caveat proceeding caused unnecessary delay, family upset and cost, and a cost order against the caveators is appropriate. The executor’s submissions on costs were filed and served on 23 July 2019. No memorandum has been filed on behalf of the  caveators.  Registry  followed  up  with  the  caveators’ solicitors  on 18 September 2019. Again, no response was received.

[4]    Costs are at the Court’s discretion but generally follow the event.1 Where a will is contested, it will sometimes be appropriate to award costs from the estate rather than against any party to the proceeding. In Re Paterson (Deceased), Stringer J identified two circumstances in which that course of action would be appropriate: where the litigation originates in the fault of the testator; or where there are reasonable grounds to suspect the testator lacked testamentary capacity or was induced to sign the will by undue influence or fraud.2 In all other cases, there is no reason to depart from the ordinary rule that costs follow the event. This approach has recently been upheld by the Court of Appeal in Crawford v Phillips and Loosley v Powell.3

[5]    I am satisfied that costs should follow the event. And, I am further satisfied that the costs occasioned by the unexplained steps taken by the caveators should not be borne by the estate. By withdrawing the caveat the day before the hearing, without explanation, the reasonable assumption is that there were no grounds to sustain it. I see the caveators as being in much the same position as a party who discontinues proceedings. The presumption in such cases is that the discontinuing party must pay costs as if he or she were the losing party.4

[6]    The caveators must pay to the executor costs in the sum of $4,440.85 and disbursements of $84.85. The executor is also entitled to the costs of this application, which I set at $296. The sum which I have awarded is based on my assessment of the

1      High Court Rules 2016,  rr  14.1  and 14.2(1)(a); and  Shirley v Wairarapa District Health Board

[2006] NZSC 63, [2006] 3 NZLR 523 at [19].

2      Re Paterson (Deceased) [1924] NZLR 441.

3      Crawford v Phillips [2018] NZCA 351; and Loosley v Powell [2018] NZCA 73.

4      High Court Rules 2016, r 15.23.

proceedings as “straightforward” requiring a “normal” amount of time for each step. Accordingly, counsel’s calculation of costs on a 2B basis, has been reduced to category 1B costs.

Result

[7]    The applicant executor is awarded costs in the sum of $4820.85, to be paid by the caveators.

Karen Clark J

Solicitors:
Lewis, Cambridge for Applicant