Hill v Bluegum [2012] NZHC 893 (3 May 2012)

Last Updated: 22 May 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2008-470-455 [2012] NZHC 893

BETWEEN BRIAN JOHN HILL Plaintiff

AND TED BLUEGUM Defendant

Hearing: (on the papers) Counsel: E Telle for the Plaintiff

G McArthur for the Defendant

Judgment: 3 May 2012

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 3 May 2012 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

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

Solicitors / Counsel:

Mr E Telle, Neilsons, Solicitors, Onehunga

Mr G McArthur, Barrister, Tauranga

HILL V BLUEGUM HC TAU CIV-2008-470-455 [3 May 2012]

[1] The defendant, having succeeded, seeks costs.

[2] At the conclusion of the substantive judgment I said, in relation to costs:

[113] The defendant, having succeeded, would be entitled to costs in accordance with the general rule. However, the Court is not bound to apply the general rule if there is good reason not to do so. Because there have been no submissions on costs I cannot express any concluded view on the matter. However, my tentative view, subject to any submissions, is that this is a case where each party should bear their own costs. It was understandable that the plaintiff, with responsibilities as executor and trustee of the will, proceeded as he did to seek to realise what appeared to be an asset of the estate of Wipere Kingi. Although the plaintiff had clear notice of Ted Bluegum’s contention, it was not on the face of it unreasonable to have the contention thoroughly tested in Court, particularly having regard to contrary indications from formal documents.

[3] I nevertheless reserved leave for the defendant to seek costs. It is apparent, from memoranda filed by the parties, that efforts were made to seek to reach agreement on the question of costs. In the end they were not successful and separate memoranda have been filed in support of the application for costs and in opposition.

[4] I have had regard to the submissions made, and in particular those for the defendant in support of the application. Notwithstanding those submissions I am confirmed in my original tentative view that this is a case where each party should bear their own costs. The essence of my reasons are those set out at [113]. I will nevertheless add some further brief observations arising out of the submissions for the defendant in support of the application.

[5] Mr McArthur, for Mr Bluegum, responsibly acknowledged that it was reasonable for the plaintiff to bring the claim on the information which he had. This reflects my earlier observation at [113]. Mr McArthur then submitted:

7. As a general principle, it is submitted, if an administrator acts reasonably in light of the facts known to him in bringing a claim or defending one for the estate, that ought not to provide a basis for an order that no costs be awarded against the estate on the estate losing in the proceeding.

8. It is submitted the better view is to look at the stance taken by the true principal of the plaintiff, Wipere Kingi which leads to the need for the litigation. It is clear that the factual position in this case must be that he

reneged on his promise and concealed its existence from those around him. It is that conduct which led to the necessity for this litigation. It is Wipere Kingi’s wealth which should compensate Ted Bluegum for the costs which will otherwise be deducted from Ted’s wealth, as a result of that conduct.

...

10. Any blame for this litigation must lie at the feet of Wipere Kingi and therefore it is his estate which rightly ought to compensate for the costs caused by that.

[6] I do not agree with the thrust of the submissions at 8 and 10. On the evidence that was provided, I am not persuaded that there was anything of consequence done by Wipere Kingi which gave rise to the need for the plaintiff, as executor of the estate, to seek to recover what appeared to belong to Wipere Kingi’s estate. I agree with Mr Telle’s submission for the plaintiff that Kura Bluegum and then Ted Bluegum effectively slept on their rights for over 40 years, including a number of years after Wipere Kingi died. The difficulties that arose for Ted Bluegum arose in considerable measure from the fact that he and his late wife failed to take any steps, when Kura Bluegum and Wipere Kingi were both alive, to give formal effect to the oral agreement that I have found was made.

[7] I also take account of the fact that this was, in its origin, a dispute relating to the division of assets inherited by Wipere Kingi and Kura Bluegum. Wipere Kingi’s estate will obtain no benefit from any part of what was inherited jointly and equally by Wipere Kingi and Kura Bluegum. Ted Bluegum’s costs in these proceedings will ultimately fall on him or his estate. But as Mr McArthur has observed, this will not occur until Ted Bluegum dies or the earlier sale of the land.

_{[8] In consequence there will be no order for costs.}

Woodhouse J