DU PREEZ v ESTATE BA ANNE DOORNEKAMP_x001e_WELLMAN [2022] NZHC 2303

DU PREEZ v ESTATE BA ANNE DOORNEKAMP_x001e_WELLMAN [2022] NZHC 2303

The settlement agreement contained an enforceable indemnity costs clause; the defendant incurred reasonable fees and disbursements in enforcing the settlement (all post-dating proceedings); accordingly the defendant is entitled to recover indemnity costs of $22,844.53 and the plaintiffs' inability to pay does not negate that entitlement.

Citation
[2022] NZHC 2303
Parties
First Plaintiff: Willem Du Preez; Second Plaintiff: Getta Snijders; First Defendant: Estate of Barbara Anne Doornekamp-Wellman; Second Defendant: Peter Crellan Kelly (as Executor); Third Defendant: Peter Crellan Kelly, PPPRA Property & Welfare (discharge); Fourth Defendant: Peter Crellan Kelly (as nephew)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 September 2022
Procedural Posture
Civil Enforcement of Settlement / Costs / Costs Judgment Following Strike Out of Claim
Outcome
Costs awarded to defendants in the sum claimed on indemnity basis
Legal Topics
Abuse of Process, Settlement Agreement Enforcement, Indemnity Costs, Costs Assessment
Civil Procedure Contract Costs Abuse of Process Settlement Agreement Enforcement Indemnity Costs Costs Assessment

Case Brief

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Parties

Willem Du Preez

First Plaintiff

Getta Snijders

Second Plaintiff

Estate of Barbara Anne Doornekamp-Wellman

First Defendant

Peter Crellan Kelly (as Executor)

Second Defendant

Peter Crellan Kelly, PPPRA Property & Welfare (discharge)

Third Defendant

Peter Crellan Kelly (as nephew)

Fourth Defendant

Procedural Posture

Civil Enforcement of Settlement / Costs / Costs Judgment Following Strike Out of Claim

Legal Issues

  1. 1 Whether the defendant is entitled to indemnity costs under the settlement agreement
  2. 2 Whether the costs and disbursements claimed are reasonable and causally linked to enforcement
  3. 3 Whether the plaintiffs' inability to pay justifies denying entitlement to costs

Ratio Decidendi

The settlement agreement contained an enforceable indemnity costs clause; the defendant incurred reasonable fees and disbursements in enforcing the settlement (all post-dating proceedings); accordingly the defendant is entitled to recover indemnity costs of $22,844.53 and the plaintiffs' inability to pay does not negate that entitlement.

Court Disposition

Costs awarded to defendants in the sum claimed on indemnity basis

Orders

  • Plaintiffs are to pay to Mr Kelly the sum of $22,844.53 being costs and disbursements payable following the Court's 19 July 2022 judgment