ASHLEY KANARA APATU V KENNETH TAMA TE KAPUA APATU HC NAP CIV-2007-441-823

ASHLEY KANARA APATU V KENNETH TAMA TE KAPUA APATU HC NAP CIV-2007-441-823

The plaintiffs' claims were not entirely hopeless but certain claims were imprudent or statute-barred and the plaintiffs unreasonably declined a November 2009 settlement; accordingly the court awarded costs one third on an indemnity basis and two thirds on a 2B scale, and awarded costs to both defendants but reduced each defendant's award by 25% to reflect overlap and shared defences; quantified awards were fixed at $41,000 to the first defendant and $44,000 to the second defendants (inclusive of disbursements and GST).

Citation
openlaw-d2168af2_76e0_4b08_8efd_8efafa9f1eb4.pdf
Parties
First Plaintiff: Ashley Kanara Apatu; Second Plaintiff: Winipera Eva Mauger; First Defendant: Kenneth Tama Te Kapua Apatu; Second Defendant: Nathan Wirihana Apaturenata Robin Apatu; Second Defendant: Katherine Louise Bates
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 November 2011
Procedural Posture
Civil Trust and Succession Dispute / Post Judgment Costs Determination (costs Hearing)
Outcome
Costs awarded to defendants in part on indemnity and part on a 2B scale; plaintiffs jointly liable to first defendant $41,000 and to second defendants $44,000 inclusive of disbursements and GST.
Legal Topics
Breach of Trust, Fiduciary Duty, Indemnity Costs, Increased Costs, Settlement Offers, Limitation
Trusts Equity Succession Property Civil Procedure Costs Breach of Trust Fiduciary Duty Indemnity Costs +3 more

Case Brief

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Parties

Ashley Kanara Apatu

First Plaintiff

Winipera Eva Mauger

Second Plaintiff

Kenneth Tama Te Kapua Apatu

First Defendant

Nathan Wirihana Apaturenata Robin Apatu

Second Defendant

Katherine Louise Bates

Second Defendant

Procedural Posture

Civil Trust and Succession Dispute / Post Judgment Costs Determination (costs Hearing)

Legal Issues

  1. 1 Whether indemnity or increased costs were justified by plaintiffs' conduct
  2. 2 Whether costs should be awarded to both defendants and whether separate counsel fees should be recoverable
  3. 3 Quantum of costs and appropriate scale (2B v indemnity)

Ratio Decidendi

The plaintiffs' claims were not entirely hopeless but certain claims were imprudent or statute-barred and the plaintiffs unreasonably declined a November 2009 settlement; accordingly the court awarded costs one third on an indemnity basis and two thirds on a 2B scale, and awarded costs to both defendants but reduced each defendant's award by 25% to reflect overlap and shared defences; quantified awards were fixed at $41,000 to the first defendant and $44,000 to the second defendants (inclusive of disbursements and GST).

Court Disposition

Costs awarded to defendants in part on indemnity and part on a 2B scale; plaintiffs jointly liable to first defendant $41,000 and to second defendants $44,000 inclusive of disbursements and GST.

Orders

  • The plaintiffs are jointly liable to the first defendant for $41,000 inclusive of disbursements and GST.
  • The plaintiffs are jointly liable to the second defendants for $44,000 inclusive of disbursements and GST.