Robbins v Hays  NZFC 11062
Published 21 November 2022
Costs — indemnity costs — scale 3C — disbursements — further provision from residue of estate — anonymisation — access to Court file — Family Protection Act 1955, s 4 — Family Court Act 1980, s 11B — District Court Rules 2014 — Family Court Rules 2002, r 16, 207 & 429 — Kinney v Pardington  NZHC 2196 — Re Hill (deceased)  NZFLR 268 — Bones v Wright  NZHC 2093 — Fry v Fry  NZHC 2716 — Bradbury v Westpac Banking Corporation  NZCA 234,  3 NZLR — Williams v Williams  NZFC 7137,  NZFLR 5 — Chapman v P  NZFLR 855 (HC).
The applicants sought costs against the estate in the proceedings. The deceased mother of the applicants was held to have breached the moral duty owed to the second applicant in her Will, and an award of $125,000 was made. The first applicant's claim for further provision from the residue of the estate was dismissed. In the subsequent costs application, the second applicant sought indemnity costs and disbursements, or costs at a 3C scale with a 50 per cent uplift.
In favour of this costs application, they argued that the earlier application had been successful, and they had made an offer to resolve matters through mediation prior to filing the claim, which had been rejected. The second applicant submitted that the other parties had acted in a vexatious manner during proceedings, and that the first applicant had assumed litigation risk in refusing to engage in settlement negotiations. The first applicant submitted that the excessive volume of affidavit evidence filed by the second applicant had increased their legal costs unnecessarily, and the second applicant received far less of the estate than she had initially sought. The respondent sought costs on a 2B basis with a 20 per cent uplift, noting the second applicant's failure and the disparity between the first applicant's claim and the award. The respondent had made a without prejudice offer comparable to the outcome of the proceedings, and the applicants' refusal justified the 20 per cent uplift.
The Judge considered two approaches for addressing costs in contested family protection cases; for all parties' costs to be borne out of the residue of the estate, and scale costs payable by parties in accordance with the principles in the District and Family Court Rules. The Judge determined that costs should be calculated in accordance with the relevant Rules and awarded the second applicant costs on a 3C basis, amounting to $55,554, and disbursements of $7456.30.
The Judge also directed that the substantive judgment and costs decision be anonymised, having regard to the subject matter of the proceedings and the impact on the second applicant and her daughters and ordered that there was to be no public access to the Court file without leave of the Court. Judgment Date: 16 November 2022. * * * Note: names have been changed to comply with legal requirements. * * *