E WILSON, R G WILSON AND C J PYLE V R VAN DER KAAP HC WHA CIV 2003-488-579 [2005] NZHC 4 (31 August 2005)

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
                                                                   CIV 2003-488-579


               IN THE MATTER OF           the estate of ROELOF VAN DER KAAP

               BETWEEN                    EILEEN WILSON,
ROBERT GEORGE
                                          WILSON AND COLIN JOSEPH PYLE
                                          Applicants

               AND                        ROBERT VAN DER KAAP
                                          Respondent


Appearances:
B Westenra for the Applicants
             Respondent in person

Judgment:      31 August 2005


                     JUDGMENT OF
RODNEY HANSEN J
                              As to costs




Solicitors:    Bridget Westenra, PO Box 127, Whangarei, for Appellants



E WILSON, R G WILSON AND C J PYLE V R VAN DER KAAP HC WHA CIV 2003-488-579 31 August
2005

[1]    In a judgment delivered on
21 April 2004, I made absolute an order nisi for
the administration of the estate of Roelof van der Kaap. The order nisi had been
made by Keane J on 12 March 2004 pursuant to s 61(a) of the Administration Act
1969 (the Act). Keane J rejected a request by the
applicants for the discharge of the
caveat filed by the respondent on the grounds that it had been lodged vexatiously or
frivolously.


[2]    The respondent appealed against the decision to make absolute the order nisi.
His appeal was dismissed by the Court of Appeal
in a judgment delivered on 14 June
2005 (CA 97/04).


[3]    On 4 May 2004 the applicants filed a memorandum seeing an award of
indemnity
costs. It was not referred to me until after the appeal was disposed of
when the applicants filed a further memorandum seeking an
increased award. The
respondent had not responded to the earlier memorandum. Following receipt of the
further memorandum, I directed
that he respond within fourteen days. He is no
longer represented by counsel and, I am informed by the Registry, has filed a
memorandum
in person which has not been referred to me because of its scandalous
content.


[4]    An award of indemnity costs is sought pursuant
to r 48C of the High Court
Rules on the following grounds in subpara (4):

       "a)      The party has acted vexatiously, frivolously,
improperly, or
                unnecessarily in commencing, continuing, or defending a
                proceedings or a step in a
proceeding; or

        b)      The party has ignored or disobeyed an order or direction of the Court
                or breached
an undertaking given to the Court or another party to the
                proceeding; or

           c)   Costs 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."

[5]    It is first submitted that the respondent acted improperly
and unnecessarily in
filing a caveat against the grant of probate and continuing to defend the application
for probate without proper
grounds. It is not argued that he acted vexatiously or
frivolously because Keane J had expressly found otherwise in declining to
discharge

the caveat. I consider it follows that the respondent did not act improperly or
unnecessarily in commencing the proceeding.
He was availing himself of a statutory
process which Keane J found he was entitled to have invoked.                      In such
circumstances, it could not be said that he acted improperly or unnecessarily.


[6]    Having regard to the judgment of the Court
of Appeal, I do not think it can be
said that the respondent's continued opposition to the making of an order absolute
was improper.
His was not a strong case but it was arguable and he was entitled to
pursue it.


[7]    The second ground relied on by the applicants
is that in terms of subpara (b)
of r 48C(4), the respondent ignored a warning given to him by Keane J and ignored
or disobeyed timetabling
orders for the filing of an affidavit.


[8]    Keane J suggested in his judgment that the respondent should review very
carefully his reasons
for resting on the caveat and requiring the executors to obtain
probate in solemn form. I do not read that as a warning but in any
event it is not an
order or direction. It is true that the respondent failed to file affidavits in time but in
the context of the
proceeding as a whole that was a minor infraction which could not
by itself justify an order for indemnity costs.


[9]    Finally,
it is submitted on behalf of the executors that subpara (c) applies on
the basis that their costs would normally be met by the estate
and they have acted
reasonably in the proceeding. However, the fact that the executors' costs are payable
by the estate does not
mean they are payable from a fund in terms of the Rule. The
executors can resort to the assets of the estate to pay costs because
they are acting in
a representative capacity. That does not make the assets a fund and I was not
referred to any authority which
might suggest otherwise.


[10]   I appreciate that in my earlier judgment on the application to have the decree
nisi made absolute,
I encouraged the executors to consider an application for
indemnity costs. That was perhaps remiss of me for having regard to the
overall
course of the proceeding (including the appeal), I am satisfied that no grounds exist
which would permit such an order.


[11]   The applicants are nevertheless entitled to costs on a category 2 band B basis,
including witnesses' expenses and disbursements
to be fixed, if necessary, by the
Registrar.