SAUNDERS, LATIMER AND BROWN V THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED AS TRUSTEE AND EXECUTIVE OF THE ESTATE OF CLARICE BARBARA GREENBANK HC PMN CIV-2008-454-38

SAUNDERS, LATIMER AND BROWN V THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED AS TRUSTEE AND EXECUTIVE OF THE ESTATE OF CLARICE BARBARA GREENBANK HC PMN CIV-2008-454-38 27 April 2010IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV-2008-454-38IN THE MATTER OF the Law Reform (Testamentary Promises) Act 1949 BETWEEN KAY SAUNDERS, CAROL LATIMER AND PAULINE BROWN Plaintiffs AND THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED AS TRUSTEE AND EXECUTIVE OF THE ESTATE OF CLARICE BARBARA GREENBANK Defendant Judgment: 27 April 2010 at 12.30 pmJUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALLThis judgment was delivered by Associate Judge Gendall on 27 April 2010 at 12.30 pm pursuant to r 11.5 of the High Court Rules.Solicitors: Jacobs Florentine, Solicitors, PO Box 237, Palmerston North Loughnan, Solicitors, PO Box 1257, Palmerston North[1] On 22 December 2009 the defendants and related beneficiary parties in this proceeding, the New Zealand Guardian Trust Company Limited, the Cancer Society of New Zealand, New Zealand Society for the Intellectually Handicapped, the New Zealand Heart Foundation and Ms Christine Guy (together called the applicants) filed and served a joint application seeking a stay of this proceeding for a period of one month until costs ordered by this Court in a judgment dated 9 December 2009 were paid to them. The application went on to request that if the costs were not paid within that one month period the proceeding be struck out. In addition the stay application sought an award of costs on that application itself to the applicants. [2] That joint application for stay was opposed in a Notice of Opposition filed on behalf of the plaintiffs on 5 January 2010. [3] The 22 December 2009 application before the Court sought a stay of this proceeding as costs awarded to the applicants against the plaintiffs at that point remained unpaid. [4] It seems from memoranda filed by counsel that it is accepted that on 24 December 2009 a cheque in payment of those costs was despatched by counsel for the plaintiffs to the office of Mr T Manktelow, counsel for one of the applicants. The applicants contend, however, that this letter was not franked by New Zealand Post until 29 December 2009 and not received by them until some time in January 2010. [5] The cheque in payment of these costs was eventually banked into a bank account of one of the defendants at some point in January 2010. [6] Subsequently, in a Minute I issued in this proceeding on 4 February 2010, it was noted that the costs in question were paid and an order was made dismissing the application for stay by the applicants. [7] Both the plaintiffs and the applicants now seek costs with respect to the application for stay itself. In seeking costs the parties on both sides of this dispute make a range of allegations against the other into which I am not prepared to delve atthis point. Suggestions are made that the stay application was hasty and inappropriate and should not have been brought. These suggestions are countered by claims that the plaintiffs were clearly in default in making payment of the ordered costs and the application itself was entirely appropriate. [8] None of this reflects well on the parties to this proceeding. As I see the position, all of this may well be appropriately entitled as simply "sniping" between the respective parties. Obviously, that needs to come to an end and a resolution of the real issues between these parties needs to be pursued. [9] With all of those comments in mind, I am of the view here that costs on the application for a stay should simply lie where they fall. [10] There is to be no order made as to costs. [11] If this may not have occurred already, the Registrar is directed to liaise with counsel for the parties to set this matter down for trial (2 days required) at the first available and suitable date. [12] Trial directions noted at paragraph [5] (d) and (e) of my 14 September 2009 Minute are to apply.'Associate Judge D.I. Gendall'