MCGRATH v SIMSON [2015] NZHC 3310

MCGRATH v SIMSON [2015] NZHC 3310

Award 2B costs to plaintiffs for all steps except the interlocutory default judgment application and require payment by the third defendant personally because the litigation was hostile and primarily motivated by the defendant's personal interest, so costs must not be borne by the estate or trust assets and there was no demonstrated inability to pay to justify reduction.

Citation
[2015] NZHC 3310
Parties
First Plaintiffs: Karen Jane McGrath, John Graeme Gardner, Anna Louise Cook, Suzanne Judi Davies; Second Plaintiff: Karen Jane McGrath as Executor and Trustee of the Estate of Sally Elizabeth Simson; Third Plaintiff: Karen Jane McGrath as Trustee of the R & S Simson Family Trust; First Defendant: Russell James Simson as Executor and Trustee of the Estate of Sally Elizabeth Simson; Second Defendant: Russell James Simson as Trustee of the R & S Simson Family Trust; Third Defendant: Russell James Simson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 December 2015
Procedural Posture
Rectification and Enforcement of Settlement Agreement; Costs Application / Costs Determination Following Judgment Rectifying Settlement (judgment Issued 28 October 2015)
Outcome
Costs awarded to plaintiffs against the third defendant on a 2B basis
Legal Topics
Rectification, Specific Performance, Settlement Agreements, Trustee Liability, Costs Awards
Trusts Civil Procedure Costs Equitable Remedies Rectification Specific Performance Settlement Agreements Trustee Liability +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Karen Jane McGrath, John Graeme Gardner, Anna Louise Cook, Suzanne Judi Davies

First Plaintiffs

Karen Jane McGrath as Executor and Trustee of the Estate of Sally Elizabeth Simson

Second Plaintiff

Karen Jane McGrath as Trustee of the R & S Simson Family Trust

Third Plaintiff

Russell James Simson as Executor and Trustee of the Estate of Sally Elizabeth Simson

First Defendant

Russell James Simson as Trustee of the R & S Simson Family Trust

Second Defendant

Russell James Simson

Third Defendant

Procedural Posture

Rectification and Enforcement of Settlement Agreement; Costs Application / Costs Determination Following Judgment Rectifying Settlement (judgment Issued 28 October 2015)

Legal Issues

  1. 1 Whether plaintiffs entitled to costs following successful rectification and dismissal of defendants' claims
  2. 2 Appropriate costs category and level (2B)
  3. 3 Whether costs can be paid from estate or trust assets or must be met personally by defendant

Ratio Decidendi

Award 2B costs to plaintiffs for all steps except the interlocutory default judgment application and require payment by the third defendant personally because the litigation was hostile and primarily motivated by the defendant's personal interest, so costs must not be borne by the estate or trust assets and there was no demonstrated inability to pay to justify reduction.

Court Disposition

Costs awarded to plaintiffs against the third defendant on a 2B basis

Orders

  • Costs awarded against the third defendant in favour of the plaintiffs on a 2B basis calculated as set out in the plaintiffs' schedule dated 27 November 2015
  • Third defendant is prohibited from seeking payment or reimbursement of any such costs award from the estate of Sally Elizabeth Simson or from the assets of the R & S Simson Family Trust