Tetley v Parker

[2022] NZHC 1637

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2005-404-005044

[2022] NZHC 1637

IN THE MATTER OF

the estate of RICHARD JOHN PARKER

BETWEEN

LEE-ANNE DALE TETLEY and HEATHER DENISE PARKER

Applicants

AND

PHILIP JOHN PARKER

Respondent

CIV-2019-485-612924

IN THE MATTER OF

the estate of GWENYTH AMY PARKER

BETWEEN

LEE-ANNE DALE TETLEY and HEATHER DENISE PARKER

Applicants

AND

PHILIP JOHN PARKER

Respondent

Hearing:	On the papers
Judgment:	12 July 2022

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Tuesday, 12 July 2022 at 12.30 pm

pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Boyle Mathieson, Auckland. Thomas & Co, Auckland.

A R Gilchrist, Auckland.

TETLEY v PARKER [2022] NZHC 1637 [12 July 2022]

[1]    On 26 April 2022, Lang J removed Philip Parker as an administrator and trustee of both of his parents’ estates. Lee-Anne Tetley and Heather Parker are Philip’s sisters. They had applied for the order made by the Judge. Lee-Anne and Heather seek actual costs of $20,872.50, payable from the estates. This would mean the costs are shared equally between the three children.

[2]    Lee-Anne and Heather rely on r 14.6(4)(c) of the High Court Rules 2016, which provides for the imposition of actual costs when these “are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding”.

[3]    Philip opposes costs being paid from the estates. He says the proceedings were “entirely unnecessary”. Philip ultimately agreed to the orders.

[4]    In Waitara Leaseholders Association Inc v New Plymouth District Council,1 Harrison J  observed  r  14.6(4)(c)  was  intended  to  capture  the  observations  in  Re Buckton:2

In a large proportion of the summonses adjourned into Court for argument the applicants are trustees of a will or settlement who ask the Court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the beneficiaries, or else ask to have some question determined which has arisen in the administration of the trusts. In cases of this character I regard the costs of all parties as necessarily incurred for the benefit of the estate, and direct them to be taxed as between solicitor and client and paid out of the estate…

There is a second class of cases differing in form, but not in substance, from the first. In these cases it is admitted on all hands, or it is apparent from the proceedings, that although the application is made, not by trustees (who are respondents), but by some of the beneficiaries, yet it is made by reason of some difficulty of construction, or administration, which would have justified an application by the trustees, and it is not made by them only because, for some reason or other, a different course has been deemed more convenient. To cases of this class I extend the operation of the same rule as is observed in cases of the first class. The application is necessary for the administration of the trust, and the costs of all parties are necessarily incurred for the benefit of the estate regarded as a whole…

1      Waitara  Leaseholders Association Inc v New Plymouth District Council  CIV-2004-443-162,  20 December 2005

2      Re Buckton [1907] 2 Ch 406 at 414–415.

[5]    There is no doubt costs are payable from a fund(s), and those claiming them were necessary parties to the proceeding affecting the fund(s). The only question is whether they acted reasonably in the proceeding.

[6]    On this issue, I decline to enter the back and forth in the competing submissions—the volleys are not illuminating. It is sufficient to observe I am satisfied Lee-Anne and Heather acted reasonably in the proceeding; Philip did not co-operate until the applications were brought. By then of course, almost all of the costs had been incurred.

[7]Philip also contends costs should be confined to 2A scale costs, a total of

$10,516. I disagree. Lee-Anne and Heather had to file sufficient evidence to support their applications. Costs should recognise this.

……………………………..

Downs J