DAL and JWL v The New Zealand Guardian Trust Company Ltd as Executor of the Estate of Rosemary Griffin

• Jurisdiction: New Zealand
• Judge: Judge D A Burns
• Judgment Date: 04 March 2010
• Court: Family Court
• Date: 04 March 2010
• Docket Number: FAM-2008-004-000746

IN THE FAMILY COURT AT AUCKLAND

FAM-2008-004-000746

Under the Family Protection Act 1955

In the Matter of the Estate of Rosemary Griffin

Between

DAL and JWL

Applicants

and

The New Zealand Guardian Trust Company Limited as Executor of the Estate of Rosemary Griffin

Defendant

Appearances:

A L Jones for applicant

C J Kelly for defendant

K Davis for Moeleen Lillian Tolson

A Donovan for Cherie Maise Christensen and Sandra Johnston

JUDGMENT OF Judge D A Burns IN CHAMBERS

[In relation to application for costs and proceedings under the Family Protection Act 1955 which were discontinued]

Background

1 The applicants, Daniel Alexander Leger and Joseph William Leger, both of Auckland, are the two grandchildren of the deceased, Rosemary Griffin who died on 25 November 2006. The applicants' father is deceased. He pre-deceased his mother. He had no other children apart from the applicants.

2 The deceased had four other children apart from the applicant's deceased father, a male child who also pre-deceased the deceased, and three female children who are the residuary beneficiaries of her estate. The proceedings under the Family Protection Act 1955 (“the Act”) were filed on 10 March 2008. The applicants claim further provision from the deceased's estate on the grounds that she had breached her moral duty to them by failing to adequately provide for them in her will.

3 The deceased bequeathed $15,000 to Joseph and created a specific trust giving Daniel the right to reside in the property at 1726 Great North Road, Avondale, Auckland.

4 The three female children of the deceased, Ms Christensen, Ms Johnston and Ms Tolson filed affidavits opposing the applicants' claim.

5 On 25 February 2009 counsel for the applicants made a without prejudice “offer in order to settle matters”.

6 On 12 May 2009 counsel for Ms Tolson made a without prejudice save as to costs “counter offer on behalf of Ms Tolson, Ms Christensen and Ms Johnston in order to settle matters in relation to the proceedings” (the counter-offer).

7 On 20 May 2009 the matter was set down for two days as a back up fixture ( 16 and 17 June 2009). On 2 June 2009 counsel for the applicants replied to the counter offer, they –

• a) Advised counsel for Ms Christensen and Ms Johnston that the applicants had rejected the counter offer; and

• b) Filed and served a notice of discontinuance dated 29 May 2009 (fourteen months after the application was filed and less than three weeks prior to the back up hearing date).

8 The matter was placed in a Registrar's List on Thursday 23 July 2009 for specific purpose of addressing the issue of costs.

9 Mr C J Kelly, solicitor for New Zealand Guardian Trust Company Limited filed a memorandum dated 1 July 2009 where he indicated that in order to keep costs down in the matter the Guardian Trust had not instructed external counsel but time spent by in-house counsel will be charged on a time in attendance basis under s.18(3)(f) of the Trustee Companies Act 1967. He submitted that the other party should meet their own costs as there were insufficient funds in the estate to meet costs.

10 Mr Davis, solicitor for Noelene Tolson, in a memorandum dated 21 July submitted that his client's costs and the costs incurred by the New Zealand Guardian Trust be paid by the applicants because –

• a) Normally the party who discontinues a proceeding is liable for the costs incurred by the other parties;

• b) If the NZGT were paid from the estate then his client (and other beneficiaries) would effectively be paying the costs from capital and thereby depleting their eventual entitlement, and

• c) The application was brought out of time and has proceeded at a slow pace;

• d) He submitted that costs should not be borne by the estate. He sought a direction that the cost incurred by his client, Ms Tolson, and the New Zealand Guardian Trust be paid on a solicitor/client basis – i.e. indemnity plus reasonable disbursements.

11 Ms A Donovan, counsel for Ms Christensen and Ms Johnston, in her memorandum of 22 July sought that the applicants pay for her clients' actual costs on the following basis –

• a) There is a presumption in favour of awarding costs against the applicants who discontinue the proceedings;

• b) The applicants acted unreasonably in bringing the proceedings and their claim lacked merit;

• c) Her clients acted reasonably in opposing the applicants' claim;

• d) The conduct of the applicants contributed to a significant delay in the proceedings which increased her clients' costs;

• e) The applicants did not discontinue the proceedings as promptly as they should have which caused increased expenses to the parties. Counsel had prepared for a two day hearing which was abandoned proximate to the hearing;

• f) It was fair and reasonable that costs should follow the events. Ms Donovan sought costs in the sum of $14,875 on a solicitor/client basis.

12 Ms Jones in her memorandum of 7 August opposed a cost order being made against her clients. In Ms Jones' submission she outlined the background to the case, the efforts from the applicants' perspective to resolve the proceedings. She provided an explanation for the delay and set out the applicants' financial position and position to pay costs. She addressed the law in relation to costs and sought that each party bear their own costs with the exception of the New Zealand Guardian Trust, which would where the costs incurred on behalf of the executive trustee would be borne by the estate.

13 The case was placed before me in Chambers for...