Public Trust v White [2012] NZHC 2176 (27 August 2012)

Last Updated: 5 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5287 [2012] NZHC 2176

IN THE MATTER OF the will of MINA ANN WHITE late of

Auckland, Retired, Deceased

BETWEEN THE PUBLIC TRUST Plaintiff

AND ETHEL MINA WHITE AND GRAEME LYNDON WHITE

Defendants

Hearing: (on the papers) Appearances: A Gilchrist for the Plaintiff

Defendants in person

Judgment: 27 August 2012

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 27 August 2012 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

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

Solicitors / Counsel / Parties:

Mr A R Gilchrist, Barrister, Auckland

Mr T Tso, Public Trust, Wellington

Mrs E White and Mr G White, Rotorua

Copy to:

Mr GHJ Brant / Ms R J Robertson, Stace Hammond, Solicitors, Hamilton

THE PUBLIC TRUST V WHITE HC AK CIV-2011-404-5287 [27 August 2012]

[1] The plaintiff, having succeeded, seeks costs on a 2B basis together with disbursements. This is in a sum of $30,456 for costs and $4,070.60 for disbursements.

[2] This is opposed by the defendant, Mr Graeme White, who is now acting on his own behalf, and on behalf of the other defendant, Mrs Ethel White. In addition, the defendants seek costs, being a sum of $115,300, which I infer is the costs actually incurred by the defendants with their former solicitors and counsel.

[3] Costs are within the discretion of the Court, but the general rule is that the successful party is entitled to costs. With litigation relating to estates there may be cases where it is inappropriate to award costs to the successful party and other cases where the unsuccessful party may be entitled to costs out of an estate.

[4] Those latter possibilities do not arise in this case. There is no principled basis to award costs to the defendants. The claim relating to testamentary capacity was weak. The contention of undue influence was unfounded. Mr White has now made allegations that witnesses for the plaintiff committed perjury or made false statements. There is no information before me indicating that there is any basis for those allegations. Such allegations should not be made unless there is solid evidence to support the allegations.

[5] The plaintiff is entitled to costs on a 2B basis. This is for two primary reasons, both already noted. The first is that, generally, costs follow the event – the successful party is entitled to costs. The second is that the testamentary capacity claim was weak and the undue influence claim had no foundation.

[6] This order for costs is against Mr Graeme White only. There is no order for costs against Mrs Ethel White. There are two reasons for this order, which I make in exercise of the Court’s discretion. One is the evidence that Mrs White’s financial resources are reasonably limited and she is elderly. The second reason is that I am satisfied, from all of the information available to me, that Mr Graeme White was primarily responsible for bringing the challenge to the will.

[7] Stace Hammond, the former solicitors for the defendants, and Mr Brant and

_{Ms Robertson as counsel, seek leave to withdraw. Leave is granted accordingly.}

Woodhouse J