ROGERS v KENNEDY & ORS [2020] NZHC 2317

ROGERS v KENNEDY & ORS [2020] NZHC 2317

Indemnity/increased costs refused because there was no obvious, incontrovertible lack of merit and no judicial finding of forgery could be made without a full trial; expert fees of Linda Morrell were approved as reasonable and necessarily incurred disbursements; claimed 2B scale costs were upheld as reasonable given...

Source-derived case information.

Citation
[2020] NZHC 2317
Parties
Plaintiff: Peter Ioane Rogers; First Defendant: Rosalie Annie Kennedy; Second Defendant: Elizabeth Margaret Graham; Third Defendant: Michael John Kennedy; Fourth Defendant: Susan Sharon Rogers; Fifth Defendant: John Kingsley (by litigation guardian Michelle Pearce)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 September 2020
Procedural Posture
Estate Dispute (will Validity) / Discontinued Prior to Trial; Costs Determination
Outcome
Indemnity/increased costs denied; plaintiff ordered to pay first defendant scale costs and disbursements.
Legal Topics
Will Validity, Forgery Allegation, Indemnity Costs, Expert Evidence, Discontinuance
Probate Civil Procedure Evidence Costs Will Validity Forgery Allegation Indemnity Costs Expert Evidence +1 more

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Parties

Peter Ioane Rogers

Plaintiff

Rosalie Annie Kennedy

First Defendant

Elizabeth Margaret Graham

Second Defendant

Michael John Kennedy

Third Defendant

Susan Sharon Rogers

Fourth Defendant

John Kingsley (by litigation guardian Michelle Pearce)

Fifth Defendant

Procedural Posture

Estate Dispute (will Validity) / Discontinued Prior to Trial; Costs Determination

Legal Issues

  1. 1 Whether indemnity or increased costs should be awarded for lack of merit
  2. 2 Whether expert witness fees (Linda Morrell) can be recovered as disbursements
  3. 3 Whether claimed 2B scale costs for preparation, briefs, discovery and inspection are reasonable

Ratio Decidendi

Indemnity/increased costs refused because there was no obvious, incontrovertible lack of merit and no judicial finding of forgery could be made without a full trial; expert fees of Linda Morrell were approved as reasonable and necessarily incurred disbursements; claimed 2B scale costs were upheld as reasonable given the categorisation and absence of compelling grounds to depart. Plaintiff ordered to pay costs and disbursements accordingly.

Court Disposition

Indemnity/increased costs denied; plaintiff ordered to pay first defendant scale costs and disbursements.

Orders

  • Indemnity or increased costs refused.
  • Plaintiff to pay first defendant costs of $28,441 (2B scale).