HARPER v BEAMISH HC NAP CIV-2009-441-000636

HARPER v BEAMISH HC NAP CIV-2009-441-000636

Indemnity costs and any uplift were refused because plaintiffs, although unsuccessful, did not act vexatiously or so unreasonably as to attract indemnity costs or an uplift; plaintiffs had professional advice and a genuine but ultimately misguided belief in their claim. Costs awarded to defendants on Category 2B scale totaling $28,460; selected disbursements allowed and a reduced witness fee of $600 awarded for Mr Edwards.

Citation
openlaw-50ac5921_aeff_4fc2_b1db_470d653f4c03.pdf
Parties
First Plaintiff: Melanie Joy Harper; Second Plaintiff: Clair Fiona Macintyre; Third Plaintiffs: Clair Fiona Macintyre and Arthur Jack Smithwick Harper as trustees of the C F Engel Trust; Defendants: Dorothy Joy Beamish, Simon Noel Beamish and Graham Cameron Edwards as trustees of the Awapai Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 March 2012
Procedural Posture
Civil (trust Dispute) / Post Judgment Costs Determination
Outcome
Indemnity costs and an uplift were refused. Costs awarded to defendants on Category 2B scale totalling $28,460. Approved disbursements: S J Scannell & Co $321.80 (less GST), Mr Edwards printing/copying/mileage/tolls $92, plus an approved witness fee of $600. No further costs ordered.
Legal Topics
Indemnity Costs, Costs on Scale (category 2 B), Witness Expenses / Disbursements, High Court Rules R 14.6 and R 14.12
Civil Procedure Trusts Law Costs Law Indemnity Costs Costs on Scale (category 2 B) Witness Expenses / Disbursements High Court Rules R 14.6 and R 14.12

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Parties

Melanie Joy Harper

First Plaintiff

Clair Fiona Macintyre

Second Plaintiff

Clair Fiona Macintyre and Arthur Jack Smithwick Harper as trustees of the C F Engel Trust

Third Plaintiffs

Dorothy Joy Beamish, Simon Noel Beamish and Graham Cameron Edwards as trustees of the Awapai Trust

Defendants

Procedural Posture

Civil (trust Dispute) / Post Judgment Costs Determination

Legal Issues

  1. 1 Whether indemnity costs should be awarded under r 14.6(4)(a)
  2. 2 Whether an uplift (50%) above scale costs should be awarded under r 14.6(3)
  3. 3 Whether claimed witness fees/disbursements are reasonable under r 14.12

Ratio Decidendi

Indemnity costs and any uplift were refused because plaintiffs, although unsuccessful, did not act vexatiously or so unreasonably as to attract indemnity costs or an uplift; plaintiffs had professional advice and a genuine but ultimately misguided belief in their claim. Costs awarded to defendants on Category 2B scale totaling $28,460; selected disbursements allowed and a reduced witness fee of $600 awarded for Mr Edwards.

Court Disposition

Indemnity costs and an uplift were refused. Costs awarded to defendants on Category 2B scale totalling $28,460. Approved disbursements: S J Scannell & Co $321.80 (less GST), Mr Edwards printing/copying/mileage/tolls $92, plus an approved witness fee of $600. No further costs ordered.

Orders

  • Costs awarded to defendants on Category 2B basis totalling NZD 28,460
  • Indemnity costs for the post-5 September 2011 period declined