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Brownlee v Golightly [2020] NZFC 3760

Published 02 August 2022

Division of costs — costs of parties to proceedings — costs of counsel to assist — discontinuance of proceedings — Family Protection Act 1955 — Family Court Rules 2002, r 207 — District Court Rules 2014, r 14.2 — Perkins v Malthus & Ors CIV-2004-485-000437, 7 March 2006 — Spencer (dec'd), Re; Hampson v Spencer [2014] NZFC 6590. The applicant sought an order granting her further provision from the estate of her deceased partner, and requested that the costs of her application also be taken from the residuary estate which was to otherwise be distributed to charity. The applicant died before proceedings could advance, and her daughters joined as parties to the proceedings in her stead, filing a notice to discontinue proceedings. They sought to have the costs of the proceedings borne by the estate in question. The deceased also left a bequest to his niece under the will, and she filed a notice of appearance in the initial proceedings to preserve her rights. The deceased's estate agreed to meet the niece's costs as she was obliged to incur those legal fees as an interested party to the application. The executors of the deceased's estate were opposed to the costs of the counsel to assist being met from the estate. The Court held that the submissions by counsel to assist which clarified his role as independent counsel were correct. The executors of the estate also opposed the applicant's costs being met from the residue estate, questioning the merits of the case to begin with. The Court held that the proceedings were discontinued as a result of the applicant's death, and not for a lack of merit. The Family Court Rules provide the Court with wide discretion to determine costs, and r 14.2 District Court Rules sets out principles applying to the determination of costs. The traditional practice in Family Protection Act cases (whereby the costs of all parties are borne by the estate) appears to be shifting, and the Court could direct that costs may be awarded against an unsuccessful claimant. As proceedings up to that point were simple and discontinued at an early stage, the Court ordered that costs of all counsel were to be met from the residuary estate. There was nothing to suggest that the applicant's claim lacked merit, and the executors approach was neutral and not adversarial, as demonstrated by their proceedings and appointment of counsel to assist. The Judge made an order for total costs of $30,600, divided between parties, to be met by the residue estate, noting that the Court has a discretion in terms of costs and that this division was reasonable. Judgment Date: 28 May 2020.