Riggs v Flowers 2020 NZFC 8197

Published 16 February 2021

Costs application — executor — residuary estate — family protection proceedings — relationship property proceedings — Property (Relationships) Act 1976, s 40 — Family Court Rules 2002, rr 207 & 379 — Campbell v Goldie [2019] NZHC 1573 — Fry v Fry [2015] NZHC 2716. This was an application for costs by the Family Protection Act ("FPA") applicants who were the children of the deceased and the Property (Relationships) Act ("PRA") applicant who was the executor of the deceased's estate, against the respondent. Both sets of applicants had been successful in their claims. The FPA claimants sought costs against the respondent and the trustees of her daughters' trusts, and an order that the costs award be paid by the executor from the sum being held on behalf of the respondent to ensure that any costs award was to be complied with. Costs awards are made at the discretion of the court, and the principles District Court Rules costs principles are imported in family court proceedings by virtue of Family Court Rules, r 207. Historically in PRA proceedings each party would bear their own costs and in FPA proceedings the court would often award costs from the residue of the estate but this approach has fallen out of favour. The Judge noted that the fact that an award of costs from the estate may mean the respondent would receive less from the estate was irrelevant, noting also that the third party had not responsibly defended the PRA proceedings and there was nothing to displace the principle that the successful party to a case is entitled to costs. In relation to the FPA application, the Judge did not consider it appropriate to award the costs from the estate or the trustees, preferring rather that the costs and disbursements come from the respondent. The Judge made orders that the respondent pay the applicant executor costs of $21,859.25 and the other applicants costs of $31,803.30. The Judge noted that these costs awards were expected to be met from the respondent's share of the residuary estate, but that if there was any difficulty with this given her history, the applicants could commence garnishee proceedings. Judgment Date: 27 September 2020. * * * Note: names have been changed to comply with legal requirements. * * *