Moffat v Barrett HC Auckland CIV-2010-404-7116 [2011] NZHC 1921 (29 November 2011)

Last Updated: 2 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-7116}

UNDER Section 5(1) of the Administration Act

1969; Setion 3(1)(b) of the Family Protection Act 1955; Section 3(1) of the Law Reform (Testamentary Promises) Act

1949

IN THE MATTER OF the Estate of the late DOREEN MARION MOFFAT

BETWEEN GRANT ROBERT SIDNEY MOFFAT Plaintiff

AND ANDREW GEORGE BARRETT Defendant

Hearing: 17 August 2011

Counsel: G R S Moffat, Plaintiff in person

S McAnally for Defendant

G Gallaway and H Holderness for Gretta Marion Evans

Judgment: 29 November 2011 at 4:00 PM

_{COSTS JUDGMENT OF ASSOCIATE JUDGE BELL}

This judgment was delivered by me on 29 November 2011 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules.

...................................

Registrar/Deputy Registrar

Solicitors:

Keegan Alexander (S McAnally) P O Box 999 Auckland, for Defendant

Email: [e-mail]

Duncan Cotterill (G Gallaway/H Holderness) P O Box 5 Christchurch, for Mrs Gretta Evans

Email: [e-mail] / [e-mail]

Copy for:

G R S Moffat, 336 Richardson Road, Mt Roskill, Auckland 1041 (Plaintiff) Email: [e-mail]

_{Case Officer: Katrina. [e-mail] / [e-mail]}

MOFFAT V BARRETT HC AK CIV-2010-404-7116 29 November 2011

[1] On 12 September 2011 I gave my decision on four interlocutory applications. I struck out all four causes of action in the plaintiff’s statement of claim, dismissed the application by Mrs Evans for determination in respect of Mr Moffat’s notice under r 8.14, and dismissed Mr Moffat’s application under r 9.75. I held that the defendant and Mrs Evans are entitled to costs against Mr Moffat and directed them to file and serve memoranda as to costs. They have filed their costs memoranda. Mr Moffat has not filed any memorandum in response within 10 working days after receiving their memoranda.

[2] Mr Moffat has been unsuccessful in his proceeding. The normal principle is that costs follow the event – r 14.2(a). In some estate proceedings, that approach is not followed. The practice of the court can range from making provision out of the estate for costs of all beneficiaries and claimants to directing that all parties are to pay their own costs. Neither approach is correct in this case. Mr Moffat’s claim has been struck out, because it was so untenable that it should not be taken further. That is an appropriate circumstance in which to apply the costs follow the event approach. A failure to apply that approach would mean that Mrs Evans, whose position has been vindicated, would end up carrying part of the costs which ought properly to be borne solely by Mr Moffat.

[3] At [91] of my decision of 12 September I said:

Provisionally I indicate that costs should be given only on the strike-out application, but I will consider any argument that costs be ordered for the other applications.

[4] I expressed myself clumsily. I had intended that costs be awarded for the strike-out applications but not for Mr Moffat’s application under r 9.75 or Mrs Evans’ application for determinations in respect of Mr Moffat’s notice under r 8.14. However, that direction does not adequately address the situation that has arisen: Mr Moffat’s proceeding is now at an end. As Mrs Evans and the defendant have succeeded, they are entitled to costs on the whole proceeding under r 14.2(a). It is inappropriate to restrict any award for costs to the strike-out applications.

[5] The costs I award cover all the steps taken by the defendant and by Mrs Evans in defence of Mr Moffat’s claim, save that there are to be no costs on Mrs Evans’ application for determinations in respect of Mr Moffat’s notice under r 8.14 (that application was unsuccessful) and Mr Moffat’s application under r 9.75 (the defendants were not required to take significant steps in relation to that).

[6] The defendant and Mrs Evans accept that ordinarily costs in the proceeding would be fixed under category 2 band B. I agree.

[7] They also seek increased costs. There are two aspects to their request for increased costs that require consideration.

[8] The first is that Mr Moffat was self-represented. During the proceeding a number of comments were made from time to time that Mr Moffat would be well advised to obtain independent legal advice for the proceeding. Mr Moffat continued the proceeding, without using a lawyer. A litigant cannot be compelled to instruct a lawyer. In bringing a civil proceeding in this court, a party who is not a body corporate is entitled to run his or her case without legal assistance. When a self- represented litigant is unsuccessful, costs may be awarded, applying the normal rules for fixing costs, but the fact that the unsuccessful party conducted the case in person does not give grounds for increased costs. Given that many litigants cannot obtain legal aid, self-represented litigants are more common. Their rights to conduct cases in person should not be discouraged by increased costs awards.

[9] The second aspect that requires consideration is that Mr Moffat used the proceeding to make extravagant and irrelevant attacks on Mrs Evans. In attacking her in this proceeding, Mr Moffat enjoyed absolute privilege under s 14 of the Defamation Act 1992. While Mrs Evans cannot sue Mr Moffat for defamation, the court should not allow its processes to be misused in this way. Mr Moffat’s attacks on his sister were an improper use of the proceeding. They were irrelevant to the matters in issue. These attacks on Mrs Evans give proper cause for the court to award indemnity costs against Mr Moffat in favour of Mrs Evans under r 14.6(4)(a). Her lawyers propose a 75 per cent increase rather than indemnity costs. In my view an appropriate increase to reflect the court’s disapproval of Mr Moffat’s attack on his

sister is a 50 % increase. That should give her an amount close to what is considered to be reasonable solicitor-client costs.

[10] The attack on Mrs Evans does not give the defendant any grounds for increased costs on his part.

[11] Mrs Evans and the defendants should file and serve further memoranda setting out their calculations of costs on the 2B basis, with a 50% uplift for Mrs Evans. The Registrar may seal orders for costs, if Mr Moffat does not file and serve a memorandum setting out any objections to their calculations. If there is disagreement, I will decide the matter on the papers.

[12] Costs awarded to the defendant form part of the residue of the estate, in which Mr Moffat has a half share. If Mr Moffat does not pay the estate the costs after request, the defendant may recover the costs by deducting one half of the amount of costs from Mr Moffat’s share of the residue and crediting that sum to Mrs Evans’ share of the residue.

[13] If Mr Moffat does not pay Mrs Evans the costs awarded to her after request, she may require the defendant to deduct the amount of the costs awarded to her from Mr Moffat’s share of the residue and to credit it to her share of the residue.

_{[14] I reserve leave to apply for further directions if required.}

Associate Judge Bell