GUNSON AND IMMS V IMMS AND OTHERS HC WHA CIV 2003-404-545

GUNSON AND IMMS V IMMS AND OTHERS HC WHA CIV 2003-404-545

Because the second respondents successfully resisted any variation of the will and the Court of Appeal clarified the High Court lacked the jurisdiction sought by the trustees, costs are awarded to the second respondents on a 2B basis to be paid by the estate; valuer's fees attributable to the proceedings are...

Source-derived case information.

Citation
openlaw-2332df11_2ee6_4a9d_b6ee_8f4f5a5b911c.pdf
Parties
Plaintiff / Trustee / First Respondent: Jocelyn Mary Imms; Defendant / Trustee: Craig Wesley Gunson; First Respondent: Yvette Banicevich; First Respondent: Donna Doe; Second Respondent: Cameron Banicevich; Second Respondent: Dene Banicevich
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 March 2007
Procedural Posture
Family Protection Act 1955 and Trustee Act 1956 Application / High Court Costs Ruling (post Court of Appeal)
Outcome
Costs awarded to second respondents Cameron and Dene Banicevich on a 2B scale to be paid by the estate; valuer's fee (Mr Nicholls) recoverable to the extent attributable to the proceedings and, if not ascertainable, an estimated 40% of his fee is allowable; other reasonable disbursements to be fixed by the Registrar.
Legal Topics
Family Protection Act Claim, Trustee Directions, Subdivision of Land, Costs Assessment, Recoverability of Expert/disbursement Costs, Jurisdiction of Trustee Act
Family Law Trusts and Estates Civil Procedure Costs Law Property Law Family Protection Act Claim Trustee Directions Subdivision of Land +3 more

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Parties

Jocelyn Mary Imms

Plaintiff / Trustee / First Respondent

Craig Wesley Gunson

Defendant / Trustee

Yvette Banicevich

First Respondent

Donna Doe

First Respondent

Cameron Banicevich

Second Respondent

Dene Banicevich

Second Respondent

Procedural Posture

Family Protection Act 1955 and Trustee Act 1956 Application / High Court Costs Ruling (post Court of Appeal)

Legal Issues

  1. 1 Whether an award of costs should be made in favour of the second respondents
  2. 2 Appropriate scale of costs (2B v higher band or percentage of actuals)
  3. 3 Whether the valuer's fees (Mr Nicholls) are recoverable as a disbursement and if so in what proportion

Ratio Decidendi

Because the second respondents successfully resisted any variation of the will and the Court of Appeal clarified the High Court lacked the jurisdiction sought by the trustees, costs are awarded to the second respondents on a 2B basis to be paid by the estate; valuer's fees attributable to the proceedings are recoverable and, if not precisely ascertainable, an estimated 40% allocation may be applied.

Court Disposition

Costs awarded to second respondents Cameron and Dene Banicevich on a 2B scale to be paid by the estate; valuer's fee (Mr Nicholls) recoverable to the extent attributable to the proceedings and, if not ascertainable, an estimated 40% of his fee is allowable; other reasonable disbursements to be fixed by the Registrar.

Orders

  • Costs awarded on a 2B basis to Cameron and Dene Banicevich to be paid by the estate
  • Mr Nicholls' valuer fee recoverable to the extent attributable to the Court proceedings or, if not ascertainable, at an estimated 40%